DWI w/ car in parking lot and keys in pocket of passenger.
I was returning to my car with a friend from a bar. Since it was crowded by the bar we had parked in a parking lot about a mile up the street. We got a ride back to my car where we were dropped off. When my friend, who was going to drive and was not drunk, walked up on the car she saw i had a flat tire. i called another friend to come pick us up. We waited about ten minutes. i was sitting in the drivers set but the keys were located in my friends pocket in the passenger seat. when i saw our ride pass, i flashed my headlights at her, so she would she us in the parking lot. At the same time a police officer was driving by and turned in . he asked if we needed help and i told him we were fine and our ride was pulling up. He asked if I had been drinking and i told i had but i wasn't driving. he asked how we got there and i explained and told him the keys were in her pocket. He proceeded to tell me he had reason to believe i had been driving and asked me to take FSTs, I refused and told him I was drunk but was never in control of the car, it had never even been started. He proceeded to arrest me. He went through my purse and even confiscated my Military Dependent ID which was valid. I confused on what to do and why he took my Mil ID.
3 Answers from Attorneys
Re: DWI w/ car in parking lot and keys in pocket of passenger.
The state has to prove that you were "in actual physical control" of the vehicle. Which basically means that you have the ability to start and drive the car... I don't think they have that here. This may be a winable case but the state may force you to prove this at trial..
If you give me a ring at the office we could talk about your options..
I won't charge you to have the chat..
Try not to stress out too much..
Sincerely,
-Leland Garvin
Phone: 954.524.2424
Email:[email protected]
Re: DWI w/ car in parking lot and keys in pocket of passenger.
Hello,
I see that you've already had one response to your question. For the most part the previous attorney was right, the State must prove that you were in actual physical control of the vehicle. However, the attorney mispoke when he said that you must prove you weren't in physcial control at trial. That is wrong, you needn't prove anything. It is the State's burden to prove you were in actual physical control of the vehicle.
The bigger issue I saw was that the car had a flat tire making it inoperable. If a vehicle is inoperable prior to the driver getting in while under the influence a DUI conviction cannot happen. So it seems that you have two very good facts working for you in your case, one you didn't have the keys, and two, the car could not be driven with a flat tire. if you have any other questions please visit my website at http://www.305duilawyer.com and send me an email or give a call.
Best of Luck,
Joseph P. Vredevelt, Esq.
Re: DWI w/ car in parking lot and keys in pocket of passenger.
Actually I meant what I said. The other lawyer was right in a legal sense; however, it doesn�t always play out like that in the real world. As a former state prosecutor I have seen the state go forward on cases that have little or no merit. This puts the defendant in a situation where they can either plead guilty as charged or win at trial. This is what I was referring to when I spoke about proving your innocence at trial.
On a positive note you may be able to resolve your case with a pre-trial motion which would save you the headache of a trial.
Bottom line; don't expect the state to do the right thing without a decent attorney who can stand up for your rights.
-Leland
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