How can I be arrested for a DUI when I wasn't driving my car?
While it may sound strange, law enforcement can arrest you for a DUI with no proof of driving taking place. And although the term “DUI” is an acronym for “driving under the influence,” the reality is that you don’t have to be physically driving at all to receive a criminal charge. If you are charged with a DUI, but not driving at the time of the incident, it is crucial that you hire a DUI defense attorney to form a defense for DUI charge while not driving immediately.
The question of whether or not you are in control of a vehicle at the time of your arrest is often a deciding factor for police. Being in control of the car means that, physically, you have the power to operate the vehicle. Being in a parked car and having the car keys on your person or in your purse can result in being charged with a DUI, but not driving.
It seems contradictory, but it is the law. Furthermore, a large part of the determination is whether or not you have the intent to drive the car. If a police officer stops you as you are getting into your car intoxicated, but not yet driving and without the keys in the ignition, you are considered to be both in control of the vehicle and having the intent to drive. These things are enough for arrest.
As established above, if police deem that you are in control of the vehicle and have intent on driving, they may arrest you. Having the keys in the ignition, whether or not the car is turned on, is reason for the arrest. According to police, it is not a DUI with no proof of driving, but a DUI with intent to drive, which results in the same charge.
Many people have heard that they can get a DUI in a parked car by sitting in the driver's seat or having the key in the ignition. Some people are arrested for sitting in a parked car after drinking alcohol but that does not mean they should be convicted. A DUI still requires some movement of the vehicle. Instead, the prosecutor may rely on the threat of a DUI conviction to get the defendant to plead guilty, even if they did not technically commit a crime.
Under the Fourth Amendment, police officers must have a certain level of justification before they can lawfully make a traffic stop, or arrest a suspect. In the context of a DUI, the law requires that officers demonstrate reasonable suspicion for a traffic stop and probable cause for a DUI arrest.
An officer must have probable cause to make an arrest for driving under the influence. An arrest is an invasion of privacy. Therefore, the justification needed to support an arrest is higher than for a regular traffic stop or an investigation.
The officer must be able to point to specific facts that show why he/she believed the driver was under the influence. A mere hunch or vague suspicion won’t suffice. Facts that might constitute probable cause include: a high blood alcohol content (“BAC”) result on a preliminary breath test, poor performance on field sobriety tests, or distinct physical signs of intoxication (such as slurred speech or dilated pupils).
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Hypothetical: While at a bar with his friends, Brian gets a text that his wife is ill. Worried, he races into his car and speeds home. Officer Jeanette sees him leaving the bar and driving over the posted speed limit. She pulls him over and asks if he has been drinking. Brian says “no,” he is just worried about his sick wife. He shows Jeanette the text message and asks if he can leave.
Although Brian shows no signs of intoxication, Jeanette smells alcohol on his breath. She asks him to blow into a handheld Breathalyzer. Brian declines. But he is angry that Jeanette is keeping from home. He makes a nasty comment about Jeanette’s physical appearance.
Jeannette then gets angry and arrests Brian for driving under the influence. Brian then takes a DUI post-arrest breath test. It shows a BAC of 0.08%--right at the legal limit.
Brian’s Orange County DUI lawyer may be able to argue that his arrest was illegal. Brian can take the position that there was no probable cause to lead the officer to reasonably believe he was under the influence. If the judge agrees, the breath test result will be excluded from evidence.