DUI Without Driving

[Thunder]

http://autos.aol.com/article/can-you...thout-driving/

Discuss. My personal opinion, I think this is just bullchit. People should not be charged with DUI offense for simply sitting and/or sleeping in their vehicles. Is this a common problem in Oklahoma? Where else can these people go to sleep it off?! Being in a car is the most safe thing to do ...and... with locked doors.

My advice, sit on the passenger side or the backseat. If police commit fraud (as they usually do) on the report, then fight them to hell in court.

[kevinpate]

Thunder, it's possible because they are in 'actual physical control' of an operable vehicle. The statute is in Title 47 of the Oklahoma Statutes, Section 11-902. It says, in part:

It is unlawful and punishable as provided in this section for any person to drive, operate, or be in actual physical control of a motor vehicle within this state, whether upon public roads, highways, streets, turnpikes, other public places or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings, who:
1. Has a blood or breath alcohol concentration, as defined in Section 756 of this title, of eight-hundredths (0.08) or more at the time of a test of such person’s blood or breath administered within two (2) hours after the arrest of such person;
2. Is under the influence of alcohol;
3. Is under the influence of any intoxicating substance other than alcohol which may render such person incapable of safely driving or operating a motor vehicle; or
4. Is under the combined influence of alcohol and any other intoxicating substance which may render such person incapable of safely driving or operating a motor vehicle.

See the full text at: http://www.oscn.net/applications/osc...?CiteID=439901

FWIW, sitting in the passenger side or the backseat is not going to be of help to someone if they keep their keys in the ignition, on their person, or in the car with them (which many do when they decide to sleep it off.)

[BBatesokc]

See where several cities/states are and/or are considering a no refusal law when it comes to breathalyzers or blood tests for DUI suspects. In many cities 50% of more of DUI suspects currently refuse the tests.

[Thunder]

DUI = Driving Under Influence

People need to start protesting to have these laws rewritten.

[MustangGT]

For the most part DUI=APC. If you don't like it Thunder may I suggest you lobby your lawmakers for a change. I would not hold my breath on ANY alcohol/driving law to be watered down. They only are going to get stronger. Count on it. It was effective lobbying that got the laws strengthened. It would be reverse progress aka backward thinking to go the other way.

[Midtowner]

One chapter of MADD is now crusading for lessening penalties on first-time offenders. Right now, for a first offense, you can count on around $2,000 in fines, a year or so deferred sentence, community service, and that's not even getting to the hoops DPS makes you jump through.

For APC, it = DUI, except, I believe, and Kevin is probably more of an expert here than me, that an APC doesn't count to enhance your next DUI, whereas if you have DUI #1, it's sort of no big deal, but DUI #2 is going to sting.

If you're going to pass out in your car, take your keys out of the car and toss 'em under it or something. Actually, here's some better advice--don't drink and drive.

[Bunty]

See where several cities/states are and/or are considering a no refusal law when it comes to breathalyzers or blood tests for DUI suspects. In many cities 50% of more of DUI suspects currently refuse the tests.

So don't refuse a blood or breath test, if you know you're innocent. When I was arrested for DUI on I-35, because I didn't perform the sobriety test to the satisfaction of the two excited Logan County county cops, I was arrested and hauled away to the Guthrie hospital for a blood test. After a month later the test came back zero for alcohol. And my lawyer got me off, charging me $800. Apparently, the cops wanted to arrest me for DUI, so they could be free to search my car for drugs but found none. I had refused their request to search my car and so alarmed them.

And so some words of advice: Don't refuse a cop's request to search your car. A refusal to a cop can only mean you got something to hide in your car, like drugs. My own advice has paid off. Because a couple of years later the next time a cop asked to search my car, I complied. The cop having found nothing, let me be free to proceed on my way.

[kevinpate]

Bunty, with respect, not a grand idea unless you don't ever give rides to friends, stranded folks or presumed friendlies.

FWIW, it can be interesting, and expensive, to learn what can end up in one's car without the knowledge of the car owner.

[Joe Daddy]

So don't refuse a blood or breath test, if you know you're innocent. When I was arrested for DUI on I-35, because I didn't perform the sobriety test to the satisfaction of the two excited Logan County county cops, I was arrested and hauled away to the Guthrie hospital for a blood test. After a month later the test came back zero for alcohol. And my lawyer got me off, charging me $800. Apparently, the cops wanted to arrest me for DUI, so they could be free to search my car for drugs but found none. I had refused their request to search my car and so alarmed them.

And so some words of advice: Don't refuse a cop's request to search your car. A refusal to a cop can only mean you got something to hide in your car, like drugs. My own advice has paid off. Because a couple of years later the next time a cop asked to search my car, I complied. The cop having found nothing, let me be free to proceed on my way.

Those were some crooked cops. I refuse to allow them to search my car. If they ask, you have the right to say no. I advised my daughter ever since she got her license to never allow the police to search her car either. She got pulled over by Edmond PD when she was 18 for having a tag light inoperable. He asked to search the car. She said "No I have somewhere I need to be". Cop says "It will only take a minute". She says, "No, I really need to go now. May I please leave"? Cop said "OK", gave her license and insurance card back and let here go. I was extremely proud of her for standing up for her constitutional rights. I say make law enforcement follow the law 100% of the time.

From what I understand, they cannot arrest you for saying "no" when they ask for permission to search your car. Maybe some of our resident attorneys can verify if that is a correct statement?

As to drinking and driving...just don't do it. I think APC is a bad law in some ways, especially if it can be used against someone on private property. If you are passed out on the side of the road with APC, that's another issue.

[MustangGT]

Actually, here's some better advice--don't drink and drive.

This is the BEST advice of all.

[Midtowner]

From what I understand, they cannot arrest you for saying "no" when they ask for permission to search your car. Maybe some of our resident attorneys can verify if that is a correct statement?

Nope, but they might detain you for a sniff search if there's a K-9 unit available, or the next words out of the officer's mouth might be "I detect an odor of alcohol about your person and you appear to have blood shot eyes. Could you please step out of the vehicle" as a prelude to arresting you on some BS charge of public intox so they can still get an inventory search of your vehicle as they impound it. Refusing simply means they move to Plan B if they really want to, but they don't always want to 'cuz they mostly have better stuff to do.

Just don't be an ass, politely decline the search. What Joe Daddy's girl did was spot on the right way to handle that sort of situation.

[Joe Daddy]

Nope, but they might detain you for a sniff search if there's a K-9 unit available,

I've heard that before. Is there a time limit they can detain you without arresting you?

[Midtowner]

I've read case law suggesting 20 minutes. No idea whether that is currently a good benchmark.

[MustangGT]

I've read case law suggesting 20 minutes. No idea whether that is currently a good benchmark.

According to many recent US Supreme Court decisions there is no fixed time limit. It is what is determined as "reasonable" by the appellate court. What the citizen and/or attorney feels is resaonable is irrelevant. It only matters what the Federal Judges think. As Midtowner can attest it will be VERY expensive to get to the point that the Federal Appeals Court becomes involved.

As a general rule as long as the officer(s) are pursuing a course of investigation to confirm or dispell their suspicions in a reasonable period of time the court will give LEO's very wide lattitude.

[MikeOKC]

Whatever the law - it needs to be applied fairly. I know for a fact that many DUIs "disappeared" when friends of Bob Macy's and a couple of the assistant DA's were brought to the office. He was something else. And to think our benches are now full of judges from the office of - Bob Macy.

I certainly hope things have changed in the DA's office.

[BBatesokc]

I work with lots of criminal defense attorneys and my personal one is (IMO) one of the best, and he advises clients, family, whomever..... "If you've been drinking do not submit to a breathalyzer or blood test. Yes, they are going to arrest you. But there is a good chance they cannot convict you or you can work a good plea deal." He also advises to never allow the police to detain you or search your property. If they try to unreasonably detain you then politely insist a supervisor be called to the scene. Most cops don't want to deal with that and will let you go.

[MustangGT]

"If you've been drinking do not submit to a breathalyzer or blood test. Yes, they are going to arrest you. But there is a good chance they cannot convict you or you can work a good plea deal." Most cops don't want to deal with that and will let you go.

However if you are involved in a collision that results is a serious bodily injury your option to refuse is removed and the LEO's can and will forcibly, if necessary, take a blood sample. Any comptent attorney, knowledgeable in DUI law will tell you that your chances of avoiding a conviction in this circumstance is RARE. Not many criminal defense attornies are worth a dang in DUI court. If you want a DUI attorney seek one out. Just because an attorney is good in murder cases DOES NOT mean they are competent to adequately defend a DUI. Different law different circumstances. Kinda like asking a neurosurgeon to perform open heart surgery. Kinda stupid.

[Bunty]

Nope, but they might detain you for a sniff search if there's a K-9 unit available, or the next words out of the officer's mouth might be "I detect an odor of alcohol about your person and you appear to have blood shot eyes. Could you please step out of the vehicle" as a prelude to arresting you on some BS charge of public intox so they can still get an inventory search of your vehicle as they impound it. Refusing simply means they move to Plan B if they really want to, but they don't always want to 'cuz they mostly have better stuff to do.

Just don't be an ass, politely decline the search. What Joe Daddy's girl did was spot on the right way to handle that sort of situation.

But unlike that girl's case I was stopped for two moving violations, speeding at 74 mph and driving over a white line. Once again, why take a chance with over zealous cops? Comply with a search request or else risk arrest by failing their sobriety test, so they can help themselves to searching your car while you helplessly watch in cuffs in the back seat of their vehicle. By the way, the overnight jail stay in some of these jails aren't fun, maybe overcrowded, and you may see a rat come out of a hole in the wall, and then the total legal and towing expense comes not far from $1000. So no wonder I didn't decline a request the next time a cop asked to search my car. I also passed his sobriety test good enough to suit him. In the first sobriety test that led to my arrest, I was probably shivering too much form the 30 degreee windy weather to look sober even though, I hadn't drank that day.

[BBatesokc]

However if you are involved in a collision that results is a serious bodily injury your option to refuse is removed and the LEO's can and will forcibly, if necessary, take a blood sample. Any comptent attorney, knowledgeable in DUI law will tell you that your chances of avoiding a conviction in this circumstance is RARE. Not many criminal defense attornies are worth a dang in DUI court. If you want a DUI attorney seek one out. Just because an attorney is good in murder cases DOES NOT mean they are competent to adequately defend a DUI. Different law different circumstances. Kinda like asking a neurosurgeon to perform open heart surgery. Kinda stupid.

I wasn't talking about and never mentioned "a collision with serious bodily injury." I'm speaking of the typical driver being pulled over who may have been drinking.

And, a competent DUI attorney is often the difference between prison and no jail time at all.

[kevinpate]

Brian's counsel's advice is rather spot on, especially for a first timer. Sure, the refusal will likely bring about a DPS administrative revocation, but for a 1st timer, obtaining a modification of the revo is not complicated (although the six months of interlock device will add to one's costs.) On the court house side of your new problems, there's an absence of proof beyond the officer's observations. Your end result will often be a deferred, dui school, some various assessment fees, court costs and a fine of some level, perhaps some level of community service. Complete all your little hoops and you end up with a dismissal and no conviction.

If you have a CDL that you depend on for a living though, enjoy the one relatively free bite at the apple. Another test refusal down the road will be a bigger problem, if you avoid the conviction on the criminal court side of your headache.

On a personal note to no one in particular and to all of us in general: Please do not drink and drive - even if you can afford the hassle, fines and fees without blinking a bloodshot eye.

Some of us have family out there on the roads with you and they do not deserve to meet you. Also, you really do not drive better after you've knocked back a few. That's just a stupid lie you like to tell yourself.

[MustangGT]

On a personal note to no one in particular and to all of us in general: Please do not drink and drive - even if you can afford the hassle, fines and fees without blinking a bloodshot eye.

Some of us have family out there on the roads with you and they do not deserve to meet you. Also, you really do not drive better after you've knocked back a few. That's just a stupid lie you like to tell yourself.

ABSOLUTELY, especially given the holiday season.