Charged with DWI but not driving?

I was charged with DWI, but I was not driving, how is that possible?

You can be found guilty of DWI if you are in physical control of a vehicle.

You can be guilty of DWI even if you were not driving your vehicle when you were arrested. A person is guilty of DWI if they were under the influence and were in “physical control” of a motor vehicle. Your vehicle does not need to be moving or turned on. If the police think you have the ability to operate the vehicle, you could be found guilty even if you were never driving.

What counts as “physical control”?

Physical control means that a person has the ability to start and operate a vehicle, even if they are not currently driving. People have been found to be in physical control of a vehicle when they were sitting in the driver’s seat and had the keys in hand, or close to them. Other drivers were convicted when they were sleeping in a parked car while intoxicated. Some of the main factors that are determinative include the location of the car keys, whether the engine is running, and where the suspect was located in the vehicle.

Defending against a DWI charge based on physical control

There are many ways to defend against a DWI based on physical control. It is important to show that you had no intent or ability to drive. You may also try to show that another person actually had control of the vehicle. This is a fact-intensive analysis that requires looking at all the circumstances that are present at the time you were in the vehicle.

When can you challenge physical control during your case

Physical control can be challenged at two different points during your case. First, you could challenge probable cause to charge based on physical control. At this stage, the state would have to show that there is a “fair probability” that you were in physical control of vehicle. This is a tougher standard than challenging it at trial because it requires much less evidence on the issue of physical control. At trial you can also challenge physical control, and there the state must prove it beyond a reasonable doubt. That higher standard of proof makes it much harder for the state to prove you were in physical control of the vehicle.

The Attorneys at Sieben & Cotter are experienced criminal defense attorneys that have obtained dismissal of charges and not guilty verdicts at trial.