Can I Receive a DUI Without Driving?

Suppose your friend or your teenage son was in an accident and called you for help. Before you got the call, you had been relaxing and enjoying a few beers or glasses of wine. So, you drove to the scene to calm them down. As you put in a call to a tow truck driver or AAA, a police officer pulled up and asked you both to perform a series of field sobriety tests.

You had some alcohol earlier in the evening, but by this point the effects of the alcohol seemed to have worn off. You refused the preliminary alcohol screening (PAS test), so the officers arrested you and took you down to the station for a breathalyzer test. At the station, you blew .06%, they booked you and kept you in the Drunk Tank overnight. Now you’re wondering, “Can I get a DUI if the officers didn’t see me driving? Do I have a defense?”

Does the State Have a Case?

In order for the state to convict you of driving under the influence (DUI), it would have to prove that you drove a motor vehicle while under the influence. Since you came to the scene, the state will want to know how you got there. Did you drive? Did you take an Uber? Did a friend drop you off? If you drove there and your vehicle was on the side of the road, the state would have circumstantial evidence that you drove to the scene.

A DUI defense attorney would want to know if you admitted to driving to the scene. Even if you did drive, it’s good that your BAC was only .06%. If it was at or above .08%, the legal limit, it would be more difficult to argue. Even still, your BAC doesn’t have to be .08% to be convicted of DUI. It is possible to get a DUI with .06%, but it’s easier to challenge in court.

If the officer didn’t see you driving and your BAC was around .05% or .06%, you may be able to get a dismissal. You have two things in your favor: 1) the officer didn’t observe you driving and 2) your BAC was below .08%, which is always a good thing.

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