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Can You Get Arrested for a DUI If You Weren't Driving at the Time?

By Christopher Coble, Esq. | Last updated on

If a tree fell in a forest and no one heard it, did it happen? If you drove while intoxicated, but no one saw you, did you break the law?

It was a long day at work. You stopped by a bar, had a few drinks, and got buzzed. During your drive home, you decide you're a little too tipsy, and pulled over and sleep it off in your car. Next thing you know, an officer is knocking on your door, and you're getting arrested for driving under the influence.

Is this possible? Can you get arrested for a DUI if the officer never saw you drive?

Probable Cause

As always, the answer is maybe. An arrest for DUI requires probable cause. Officers usually have probable cause to pull you over and investigate you for a DUI if they saw you swerving your car. However, an officer could also have probable cause to arrest even if he didn't see you drive, if he can deduce from the circumstances that you drove.

For example, you hit a tree. How did the car get there? If no one else is around, it must have been you who drove the car into the tree.

Or, you were sleeping in your car at the side of the road. The officer knocked on your door, and when you rolled down the window, he could smell the strong odor of alcohol on your breath. The car had to be driven for it to be on the side of the road. The smell of alcohol implies that you were intoxicated when you drove the car there. (However, drivers may be able to argue the rising blood alcohol defense.) These deductions could give the officer probable cause to arrest you.

You Don't Need to Drive to Get a DUI

In some states, like Washington, you don't even need to be driving to get arrested. Washington law does not criminalize just driving under the influence; the state also criminalizes "physical control of a vehicle under the influence." What is considered physical control? If you were in the driver's seat with the keys in the ignition, this could be considered "physical control." You could be sleeping instead of driving, and you would still be "in physical control."

If you've been arrested for a DUI when you weren't driving, an experienced DUI defense attorney can help assess the legitimacy of your arrest.

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