If the officer didn't see me drive can he arrest me for DUI?

Question

About 2 months ago I was charged with DUI, my friend pulls into a parking lot, I get off and go into the store and buy some items. 

As I'm walking out an officer approaches me and tells me to lock up the car, I tell him it's not my car. 

He starts yelling at me, so I get the keys from my friend and lock it up, but to lift the windows I need to start the car that's what the owner tells me. That's the only time I go into the driver side. We stand by the store waiting for a taxi when another officer shows up. 

The  officer that arrested me said that another officer saw me driving in a parking lot of a store. Which is not possible because I wasn't driving, I was with a friend and the car was hers. On the arrest report the arresting officer stated that at 203am he was dispatched to the parking lot to assist another officer on traffic stop, and that the officer that saw me driving was assisting another officer with a different DUI stop in the same parking lot.  That the stop was due to the cop seeing my drive and nearly collide with his police unit. When I read that I was in fumes. I decided to go to the police station and get their dispatch papers. 

They say that the officer that saw me drive was dispatched at 207 and wasn't at the parking lot till 219. And the officer that arrested me wasn't dispatched at 203 but till 219 and didn't arrive till 221. So I ask myself when did the officer see me drive. Is this a good case to fight?

Timothy Byrne · Answer

You have an arguable case.

Jennifer Leigh Gottschalk · Answer

Yes.

Craig Elhart · Answer

Yes.

Gregory Crain · Answer

Yes.

Leonard A. Kaanta · Answer

Yes.

Michael J. Breczinski · Answer

You want to plead not guilty and go to trial. The driver should testify that you were not driving. Get a good attorney.

Mark Bruce · Answer

Get a lawyer.  Get a lawyer.  Get a lawyer.  You have a defense but don't try to run it on your own.  Get a public defender if you can't afford a lawyer.

Steven Alpers · Answer

No but this is a factual issue for trial.

Terry Nelson · Answer

CAN he?  Of course, he did, didn't he? 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 if you think you have grounds for appeal, then appear at the scheduled DMV appeal hearing and present any supporting evidence and testimony.

Nathaniel Shafer · Answer

It all comes down to your credibility versus the officer's credibility. Generally, juries and judges tend to favor police more than citizens when they are assessing who to believe, but specific places in the country that isn't true. I would talk to a lawyer and see if there are any issues for suppression and have someone who can look over all the facts give you an honest assessment.

Michael Clinton · Answer

Sounds like you might have a good case here. Contact a DUI attorney if you intend to defend this.

Jason Savela · Answer

You have a good case, but you need an experienced DUI attorney. The DMV has found that sitting in the drivers seat with keys in the ignition is "driving" under their rules - but you did not do this voluntarily and even were entrapped to do it by the first cop   this needs to be proven and you likely cannot do this alone. The criminal case can also be won, but you need help. If you have been served with a Notice of Revocation, then you have 7 days to request a hearing. Please do that immediately by going to your local DMV office, tell them you got a DUI and you want to request a hearing. They will give you a form. DO NOT REQUEST THE OFFICER.  We can do that later if we choose to, but most often it means you will lose. The receipt DMV gives you allows you to drive until the day of the hearing. Representation begins when client pays attorney an agreed upon retainer and returns a signed fee agreement.

Willie Stephen Graves · Answer

Yes, it's a good case to fight.

George Derieg · Answer

The officer would either have to have witnessed you driving the vehicle, or another witness who would be required to come in to court.

John Brennan · Answer

You may have a possible defense.

Jared Altman · Answer

Yes. It's a good case to fight.

Thomas Tomko · Answer

Your analysis is correct, and it will be a matter of presentation. You may consider hiring an attorney to assist you with this defense. You should not reveal this strategy to the Prosecutor, as they will simply be better prepared to address this in front of the jury.

Philip Hache · Answer

If there is no driving, then it sounds like a good case to fight with me. You should speak to a DUI attorney about your case in more detail. Sounds like you already did some investigative work on your own, but there is a lot more work to do on cases like this.

Ernest Lee · Answer

It sounds like a good one.

Brian Wanerman · Answer

A peace officer can arrest you any time he has probable cause to believe you committed a crime. Unfortunately, in practical reality that essentially means whenever he wants. The standard for convicting you is much higher. Based on your description of events, its sounds like a difficult case for the prosecution to make. You should consult an attorney right away, however, to protect your rights.

Jeffrey Pollock · Answer

One can be sued or arrested for anything. Whether there is an eventual conviction is a different story.

Larry Dunn · Answer

The State is required to prove a charge beyond a reasonable doubt. The fact that you actually were not driving and have a witness who can testify on your behalf are evidence which you can present in your defense at trial. The fact that the officer required that you start your friend's vehicle may negate an allegation that you were in control of the vehicle after the officer confronted you. DUI is a serious offense and the fact that you were not  the driver only highlights that you should seek representation and defend against the charge.

Mark R. Thiessen · Answer

What you have is a wheel witness defense.  A good dwi trial attorney will be able to fight it.

James Gandy · Answer

You should find an attorney immediately.  This appears to be a case where there is a question as to your operation of a motor vehicle.

Gregory Casale · Answer

As you have already learned, yes, the officer can arrest you. However, the more important issue is now, can the prosecutor convict  you. One of the three (3) elements of a drunk driving (OUI) charge is Operation, along with public way and .08% alcohol in the blood or impaired operation as the other two elements. The element of Operation is your issue as you describe your situation. There are cases that say that even an admission by the operator, without some corroborating evidence is insufficient to establish Operation beyond a reasonable doubt, the standard in a criminal case. I advise that you call me or another lawyer to discuss your case in more detail. It sounds like you have a very triable case. Make sure you get a good attorney. You only have one chance to get this right.

Jeff Yeh · Answer

They can use circumstantial evidence to show that you must have been driving. However, this kind of case is weaker, and you should get a DUI specialist to do everything that can be done to minimize the consequences, such as a dismissal or reduction in charge. Don't forget about the equally important DMV Hearing, of which you have only 10 days to request.

Steven Fairlie · Answer

You bring up great points but no one can tell you whether you are likely to win until you sit through a full consultation on the case, generally taking about an hour.

Michael Palumbo · Answer

Is it a good case to fight. Every case is a good case to fight. In your case you actually have evidence of innocence. Even if you were stone cold guilty you have to fight a DWI case in today's day and age. Retain counsel and pound upon the "operation" element of DUI.

Paul Stanko · Answer

You should definitely get an attorney to defend you. Even if you didn't have favorable facts, you should never try to defend yourself in a criminal case.

Kevin Ellmann · Answer

Any case where you are accused of committing a crime that you didn't commit is a good case to fight. Consult with an experienced DUI defense attorney.

Russell Pietryga · Answer

Yes.  this is a great case.  It is an actual physical control issue.  If they cannot put you behind the wheel, they have no case.

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If the officer didn't see me drive can he arrest me for DUI?

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