Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from a cop in Utah. Multiple callers report an erratic driver who hit traffic cones and ran people off the road. Ten minutes later officers find the plate at a residence, the car parked and empty, and the driver at the door saying he did his drinking after he got home.
Hey guys, Anthony Bandiero here, attorney, senior legal instructor for Blue to Gold Law Enforcement Training, bringing you a roadside chat from a cop in Utah. The cop asked me something that’s actually based in statutory law, but it has a search and seizure component. The officer says, can you arrest someone for DUI if you did not see them in actual physical control of the vehicle?
Does your DUI statute require driving or actual physical control?
All right. So the answer is it depends on your state law, because DUI statutes come in two flavors, or both. Well, they can have both.
One is that the statute requires that the person be driving at the time of contact, and/or be in actual physical control, which is where you can prove circumstantially that they were driving the vehicle previously.
Now, most states, in my experience, allow both. The person’s driving, which obviously implies that they’re in actual physical control at the time. Or you can also prove circumstantially that they were driving the vehicle in the past.
That is most common with accidents. You show up on an accident scene and the person’s not in the vehicle. How do you prove that they drove there intoxicated? That’s circumstantial evidence. You can also have direct evidence by them making admissions and so forth. But usually you’re going to have to have more than just their admission that they drove the vehicle.
What if the driver made it home before you knocked?
So let me give you the hypothetical here.
The officer gets a report of an erratic driver. Apparently many calls on this. He was also reported to be all over the roadway. He hit traffic cones. He ran people off the roadway. We’re looking at a possible DUI. They have the plate. They run it and they find the vehicle is parked at the residence, unoccupied.
Ten minutes later they knock on the door. The driver says, yeah, I came from that area. He makes admissions that he was in the area of where the traffic cones were and people ran off the road. But he tells the cops that he drank alcohol since then at home.
Now the officer’s saying, in his training and experience, there’s no way he could have got that intoxicated within the ten minutes. Meaning most people don’t drink that heavily within the last ten minutes and so forth.
Now the ultimate question again is, can we arrest this person even though we did not see him behind the wheel, based on DUI?
Do you need to see the person driving to get a DUI conviction?
Well, the answer in Utah, now we’re getting into the state specific, but I did look this up. The answer in Utah is yes, because you have a 1977 case reported at 563 P.2d 175. P.2d stands for Pacific Reporter. That’s where the case is.
So basically what happened here is officers in Utah arrived on scene to a rollover crash. Three injuries, one is seriously injured. The defendant, who becomes our driver, he does admit that he drove. He’s also highly intoxicated, consistent with DUI and some other things. I think the vehicle is also registered in his name. So a lot of circumstantial evidence that he is the driver.
Well, he says, you can’t convict me for DUI because you didn’t see me driving. And the court dismissed that argument. The idea here is that there was sufficient evidence independent of the defendant’s admission of having been the driver to support a conviction of driving under the influence.
So to answer the officer’s question directly, can you arrest somebody and get a conviction ultimately, even though you did not see him driving? The answer is yes.
What happens when the driver says he drank after he got home?
But now let’s turn to the specific hypothetical here. We do have a problem. The problem is that he did make it home and he’s telling you that he drank in the meantime.
So even if the officer has probable cause to arrest, let’s say the guy comes out and talks to you and so forth, even if you have probable cause to arrest, I just don’t see it going anywhere. Because even though in your training and experience the person would likely not be that intoxicated within ten minutes, that’s not going to be beyond a reasonable doubt.
I mean, you can’t go up to court and say with any certainty, your honor, there is no way that this person could have gotten this intoxicated between the time of the calls and the time that I arrested him. You just can’t say that, because you don’t know if he swigged a fifth of bourbon in the last ten minutes. You just don’t know that.
So if it was me, if it was me, just the way I do business, I would not make the arrest. Because I just don’t have a way beyond that. Even if I made the arrest, and even though it may be based off of probable cause, I’m not saying the arrest would be unlawful. But the investigation at this point is not going to go anywhere.
I mean, I’m not going to write a warrant for his house to go see if there’s evidence that he’s been drinking recently. I’m just not going to do that. So I’m making the arrest with the knowledge that this thing is going to be dismissed, most likely.
Now, if there’s other things going on, like he ran someone off the road and killed somebody, maybe I do make the arrest and see if there’s some kind of other way that the DA will try to take this case. I don’t know. But the point is, based off of these facts alone, unfortunately, it looks like he’s going to probably win his DUI charge.
Can you still charge reckless driving?
Now, maybe you also have reckless. If you have witnesses that are willing to come forward and sign the complaint, based off of your state law, it happened in their presence and so forth, maybe you can get him for reckless. Maybe you will win that conviction, if these people show up to court and testify that he ran them off the road and so forth.
I mean, he did admit to driving. He did admit to being in the area. The vehicle is there. So that one could probably be winnable. But the DUI is severely problematic in my book.
If you have a different opinion on this, or you have other experiences, why don’t you share with your fellow officers and let them know what your experience has been, or whether or not you agree with me. And if you don’t agree with me, we’re still friends. Don’t worry about it. There’s multiple ways to skin this cat, and I’m just telling you the way I would do business.
The short version
- “It depends on your state law, because DUI statutes come in two flavors, or both.”
- Driving at the time of contact, or actual physical control proven circumstantially. “Most states, in my experience, allow both.”
- “That is most common with accidents. You show up on an accident scene and the person’s not in the vehicle.”
- A conviction without an officer seeing the driving is possible. Utah upheld one in 1977 on circumstantial evidence independent of the defendant’s own admission.
- The intervening drink is what breaks this particular case. “You don’t know if he swigged a fifth of bourbon in the last ten minutes. You just don’t know that.”
- “If it was me, just the way I do business, I would not make the arrest.”
- “Maybe you also have reckless,” if witnesses will sign the complaint.
Related from Blue to Gold
- Could Police Detain a Driver Suspected for DUI on Their Property?
- The Stale Misdemeanor Rule
- Is Drinking From What Looks Like a Beer Bottle RS for a Stop?
This article is an edited transcript of Roadside Chat Ep. #144. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
