DUI arrest or not?

Posted by on . 10 comments.

OK let me make this clear first! NONE OF WHAT YOU ARE ABOUT TO READ HAPPENED!


I'm in a resturant and someone notices me stumbling around as I'm getting ready to leave and calls the cops (who just happen to be close by) Just as I'm getting in my car Johnny Law arrests me. They take me to the police station and give me a breath test. The legal limit is .08 but surprise! Even though it seems like I'm drunk I blow .07!!! Does John Law still have a case or should I walk?

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  1. CGIV76 says:
    February 28, 2010 at 4:38 am

    You can be charged with being in physical control of a motor vehicle while under the influence. Even though the BAC was .07, there is a variance of .01. The argument could go either way, .06, or .08. Even though the legal limit is .08, a person can show impairment long before reaching that limit. Along with sobriety tests, and the Officers observations, I would say he has a very good case.

  2. Reported for insulting my belief says:
    February 28, 2010 at 4:38 am

    Walk. Plus they can not go on hear say.

  3. chrispkreme333 says:
    February 28, 2010 at 4:38 am

    Police have a case. It does not matter if you are under or over. They can book you on unsafe driving. But, A DUI charge may not stand.

  4. Ken says:
    February 28, 2010 at 4:38 am

    Well, according to your hypothetical you did not drive so you would walk. Had you driven, the state could attempt to prove a case of intoxication despite the .07 breathalyzer by testimony of actual intoxication. They rarely do that as a practical matter because jurors want to see that BAC.

    EDIT: Intent is not an element of a DUI. If it were, intent could be destroyed by intoxication. DUI is a strict liability crime. If the statute says "operating a motor vehicle" as it does in my state, then the state must prove "operation" of the vehicle. In this hypothetical he was "getting in the car." I am surprised that so many police officers say they would charge this person with a DUI.

    Here is an AZ case, the exception because that person HAD driven which is much different but nonetheless instructive:

    The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway. Arizona v. Zavala, 666 P.2d 456.

  5. Citicop says:
    February 28, 2010 at 4:38 am

    Still have a case. If the officer can make a case for impairment based on his observations of you, then the case will hold up (at least in Missouri).

    ALSO, if you blow a .07 but are acting more impaired than that, then we are going to get blood drawn, for 2 reasons:

    1.) The alcohol reading in a blood test is almost always higher than in a breath test (the breath machines are designed to favor the person testing).

    2.) You may be on some combination of drugs and alcohol that the blood test will reveal.

  6. SGT. D says:
    February 28, 2010 at 4:38 am

    First, I’d detain you and administer the alcosensor again in about 15 minutes, if your BAC. went up, I’d process you for DUI, if it went down, I’d let you go or I’d charge you for Public Intoxication, depending on your attitude and how your conduct was while in and leaving the restaurant.

  7. John H says:
    February 28, 2010 at 4:38 am

    They still have a case if they can prove were impaired. By you entering into the vehicle, I assume behind the steering wheel, they can prove your intent to operate a motor vehicle.

  8. kevw25 says:
    February 28, 2010 at 4:38 am

    Still have a case.

  9. mikeysco says:
    February 28, 2010 at 4:38 am

    This is going to vary according to the state you’re talking about because DUI statutes vary considerably between states.

    In California, and no matter what anyone here will say to the contrary, you must actually be proven to have driven a vehicle while intoxicated to be guilty of DUI (anyone is welcome to prove me wrong with any California case indicating otherwise).

    In the scenario you present, there are two possible options under California law:

    1. Arrest you for public intoxication, assuming you are intoxicated to the point that you are unable to care for your safety or the safety of others (because that’s the standard for a public intoxication charge in this state). That seems unlikely given the fact pattern in your scenario.

    2. Arrest you for attempted DUI, assuming it can be proven that you were indeed about to drive. That’s a mighty high hurdle to overcome unless you’ve got a pretty stupid drunk on your hands. I don’t think I’ve ever heard of it being done, but it would be technically possible.

    Does Johnny Law have a DUI case against you in California under your scenario?

    No – at no point in time did you *drive* your vehicle, therefore you did not commit the crime of driving while intoxicated.

  10. detectivetom says:
    February 28, 2010 at 4:38 am

    First off, you do not have to be driving to be arrested for a DUI. You just have to be in control of the vehicle. You have the keys, you are behind the wheel, it still is not started, you are in control of the vehicle. You can be arrested.

    Okay as stated earlier you blow an .07, just under the limit. You are not "intoxicated," but you are "impaired." There is still basis for the arrest. You have a good chance of winning, but if you are stumbling about, as you wrote, there is a good chance of being convicted. It depends on how case is presented. No stumbling, then probably no conviction.

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