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?

Get Legal Help Today

 Secured with SHA-256 Encryption

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 9 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.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption