Arrested for drunk driving in Michigan, but the officer did not see me driving, what are my options?
It's common for a potential client to reach out to me with a drunk driving case, and one of the factors they bring up is the police officer did not see them driving. Most DUI's begin with a traffic stop by a police officer, but there are some cases where the police arrive when the driving is already complete, and there is no first hand police officer observation of the driving.
Fair enough, but does this really help your case? If you find yourself in this situation, let's go over some questions.
1. Are there any passengers or other people in your vehicle with the police arrive?
2. Where did the police officer find you?
3. Is there evidence of a crash?
4. Is the vehicle legally parked?
5. Was another car involved?
6. Are there eyewitnesses, businesses or homes in the area?
7. Why are you where you are when the officer arrives?
8. What did you tell the officer when you spoke to him?
For a prosecutor to proof a drunk driving offense in court, they need to convince a judge or jury beyond a reasonable doubt that you were "operating" the vehicle. This DOES NOT require police officer testimony that you were driving. Mere evidence that you were previously operating prior to the cop's arrival is circumstantial evidence, but proper evidence to be admitted.
Most of the time the client says too much to the officer when they arrive and admit to driving or close off any potential loopholes of a "I wasn't driving offense" - ask yourself this, if you weren't driving, what reasonable explanation is there for why the vehicle is where it is, and if you weren't driving, exactly who was driving?
I've been a prosecutor and defense lawyer on 1000's of DUI cases, and I've heard some crazy stories. There was no better DUI case to prosecute than when the Defendant tried to run some bullshit "I wasn't driving story" by a judge or jury - I loved prosecuting these cases and getting to the truth of the matter that they were indeed driving.
As a defense lawyer, I take this same bullshit detector approach with my clients. It is not to my client's benefit to get caught trying to deceive a jury or judge with a bogus story. If the client indeed was not legally "operating" within the law, we will push the issue in court, but if I don't believe the story, I will confront them on it, and warn them about the downside of perjury in open court and "pissing off a judge" by a fairy tale, which turns a potential reasonable outcome into something a lot worse if a judge believes the story is not the truth.
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