Can you be arrested for DUI if the police did not see you driving your car? To evaluate that question, it must be further broken down to were you sitting in the car or were you outside the car when the police arrived?
The easier question concerns if you are outside your car when the police officer arrived. If you are simply outside of your car when the police officer arrived and you are inebriated without more, such as an eyewitness or more commonly, ratting yourself out to the police, the answer would generally be no. The proof required by the state to prove the elements of a DUI charge would generally be inadequate under these circumstances.
The police are quite efficient at applying pressure and asking questions of a suspect in order to get them to hang themselves. The first question from the police officer will be, were you driving this car or “what happened when you were driving this car?” And then typically the defendant engages in a conversation thereby indicating that he was the driver and providing evidence that the state can now use against the driver in court. This is why the Miranda warnings indicate that you are not compelled to give evidence against yourself and that anything you say can and will be used against you in court. Make no mistake, they will use this type of evidence against you and it could be the only evidence the government has to convict you of the charge.
The more complicated question is what if you were sitting in your car, legally parked in a parking lot when the police arrived and uncover the fact that you have been drinking. The answer is in the Atkinson case. This important Appellate opinion points to several factors that the courts will look to to see if you were “in control” of your car despite the fact that the car can be off at the time the police arrived.
The fact of whether or not you are actually operating your car is not at issue, the only issue is were you in “control” of your car when the police arrived. Factors that the court will look at to determine control of the car are where you were sitting in the car when the police approached, was the engine on, where were the car keys, was the engine warm to the touch, is the car lawfully parked, and were the head lights on. There is no one controlling factor that guides the court but rather a totality of the circumstances when considering all the factors in the Atkinson case.
If you feel as if the operation of a motor vehicle is not in your best interest at a given time it is a very smart idea to pull into a legal parking spot and stay there, remove the keys from the ignition and place them on the passenger seat and climb into the backseat or passenger seat of the car and sleep it off; the same applies if you are using your car as shelter and have no intent on moving the car. This is good for the public interest, it is good for your interest, and from a legal perspective it is a very wise idea. If the police arrived on scene it would be wise to provide them little to no information at all regarding how you came to be at that location. One would, under the circumstances have a very powerful defense to the charge which the police would naturally bring in order to advance their monthly DUI quota.