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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23586
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I was charged with a dui. I was sitting in drivers seat in

Customer Question

I was charged with a dui. I was sitting in drivers seat in my van waiting for my wife to come get me because vehicle was broke down. Sitting for about an hour. Vehicle was not running, keys were not in ignition, no alcohol in vehicle and I was not driving. I did drink a 40 oz beer while waiting but still didn't have any open containers in vehicle. Can you tell me the law in this situation or how I can find the actual law and read it pertaining to no keys in ignition, not driving, sitting in drivers seat and vehicle not running? How can they charge me with a dui?
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 11 months ago.
Hello,
My name is ***** ***** I am an experienced criminal lawyer.
You have to have been operating the vehicle with a BAC of .08 or more to get convicted of a DUI. Operating the vehicle generally means driving it or placing it in operation by sitting in the car behind the wheel with the keys in the ignition and the motor running.
However, the state can try to prove the case against you circumstantially. That is, they can attempt to prove beyond a reasonable doubt using all of the facts and circumstances of the case that you were behind the wheel of a disabled vehicle which could not have gotten there unless you'd driven it there, and that you'd been drinking before you drove it.
This is not the world's strongest case for the state. If you made no statements to the police, for example, you could have just been waiting behind the wheel of the car when the actual driver ran off to find a telephone to report the incident and get help. So if you wanted to go to trial on this case, your lawyer may be able to cast doubt as to who the actual driver was that got it to its location.
However, you were waiting behind the wheel, which could reasonably mean that you'd been the actual driver, and if no container for the beer was found in or near the vehicle, it would also be reasonable of the police to believe you'd had the beer before and not after you'd broken down at that location.
In short, the state may have a hard time convicting you on the evidence they have, but they would arguably have enough for the probable cause to arrest you. All they need to believe to arrest you is a reasonable belief that you may have driven the car while under the influence of alcohol.

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