Can you be charged with a DWI if the police did not pull you over nor see you driving and when they got there you were not in the car?
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Can you be charged with a DWI if the police did not pull you over nor see you driving and when they got there you were not in the car?
My wife and I were having an argument and I left and went to a friend’s house. I had a few drinks there. She came over and made a big scene and the police was called. When they got there we were standing outside of the car arguing. The police came over to me and asked me to do some field sobriety tests which I refused. I was not driving at the time he asked had I driven? I said that I drove over to my friend’s house to prevent arguing with my wife. He then said I admitted to DUI. However, I drove to my friend’s house before I was drinking. Can they do that?
Asked on December 21, 2011 under Criminal Law, Minnesota
Answers:
Russ Pietryga / Pietryga Law Office
Answered 12 years ago | Contributor
The officer could site you for the DUI. However, based on the facts, as you have presented them, it does not appear that the city attorney could establish actual physical control
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 . . . 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. (the Richfield Factors) They are: 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.
In short, the city attorney will have a very difficult time proving you had actual physical control of the vehicle. And, a motion to dismiss challenging this should be successful in getting rid of the charges.
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