Can you get a DUI if you are not driving when the officer stops you?

The short answer is yes you can. And it’s really going to be dependent upon the facts and circumstances in your case.

Keep in mind in order for the government to prove that you’re driving under the influence, the prosecutor has to prove:

1. That you were driving.
2. That your physical and or mental abilities were impaired in that you’re not driving as a reasonably sober person would in that situation.
3. Or they would have to prove that your blood alcohol level is 0.08% or greater at the time of driving.

So the key that the government relies upon in trying to prove these cases is to prove that you were in fact driving. And how do they do that?

The government tries to prove that you were driving even if you weren’t driving at the time that you’re stopped by an officer by trying to rely upon what’s called circumstantial evidence.

So what do I mean by that?

The government is going to see:

1. If you made any admissions. Did you make any statements to the officer admitting that you were driving?
   
   So for instance let’s say that you were driving and then you got tired so you decided to pull over to the side of the road just to make sure that you could sleep it off. Maybe get some rest. And then let’s say the officer approaches you and if you make an admission that you were in fact driving, that could be something that’s used against you in a court of law.
   
2. Other things that the government may rely upon is to see if the hood of your car is warm at the time that the officer approached your car. Does it make sense to think that you were recently driving because the hood of your car was warm? Or perhaps that you’re in a busy street and the officer was patrolling the area, and when he was patrolling the area, initially your car wasn’t there, but then when he makes his round your car ends up being there. That’s something that the officer can rely upon to infer or to logically infer that you had in fact been driving the vehicle.
   
3. Other factors that the officer might rely upon are 911 calls. Maybe there was a reporting party that called in that said that someone was sleeping in their car, that it looks suspicious, and that they had just seen the person pull over. That’s something the government can rely upon.
   
4. Also, an officer is going to look at the keys. Where were your keys at the time? Are they actually in the ignition? Are they in your pocket? Are they in the center console? Are they in the trunk?

And these are all of the things that the government is going to look at to determine whether they can prove that you were in fact driving while under the influence of alcohol and or drugs.

So if you’re in a situation where this fact pattern sounds similar to yours, please make sure to give us a call and we’d be more than happy to sit down with you, go over your options, and provide you with a legal consultation.