If Iam being charged with an OWIbutI wasn’t behind the wheel at the time of the arrest, canI use this as part of my defense?

Get Legal Help Today

 Secured with SHA-256 Encryption

If Iam being charged with an OWIbutI wasn’t behind the wheel at the time of the arrest, canI use this as part of my defense?

I hit a guard rail on the freeway and walked to the nearest gas station to use the phone. Police arrested me at the gas station and charged me with an OWI and leaving the scene of an accident.

Asked on February 13, 2012 under Criminal Law, Michigan

Answers:

Russ Pietryga / Pietryga Law Office

Answered 9 years ago | Contributor

Yes, you can use this as part of your defense.  You are challenging the acutal physical control element of a DUI charge.  I practice in Utah so I have answered this question on many occasions.  I am sure your state has the equivalent analysis.  I have provided Utah's analysis for actual physical control, to give you an idea of what to expect.  

        

     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: (a) has sufficient alcohol in the person’s body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test; (b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; (c) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control.[1]

           

            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:  (1) 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.[2]

 
Hope this helps.

[1] Utah Code Ann. 41-6a-502

[2] Richfield City v. Walker, 790 P.2d 87 (Utah Ct. App. 1990)


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