Can I Get a DUI if I’m Not Driving?

Drink and DriveThe Ottawa County District Attorney recently charged a Tribal Marshal for Driving Under the Influence (DUI) after deputies discovered him passed out in the back seat of his patrol car. The district attorney based the DUI charge on facts that did not indicate the Marshal was driving.

According to reports, deputies discovered the Marshal in the back seat. Although dressed in full uniform and equipped with his gun, there was no indication the Marshal was operating the vehicle, in a position to operate the vehicle, or had any intent to operate the vehicle. Despite the absence of facts showing the Marshal was driving under the influence, the district attorney charged him with DUI anyway.

Given the absence of facts showing that the Marshal was driving under the influence, the decision to charge him with DUI appears motivated by a recent decision from the Oklahoma Court of Criminal Appeals regarding the crime of Actual Physical Control (APC), e.g., being intoxicated with the intent to drive.

In Brockman v. State, 2013 OK CIV APP 48, the Oklahoma Court of Civil Appeals discussed the type of evidence an officer may rely upon to arrest for APC. The Brockman Court described the facts as follows:

The arresting officer was dispatched to an apartment complex in response to reports of a fight in progress. Upon arriving at the scene, the officer determined Brockman had been involved in the altercation. Brockman was sitting in the passenger seat of his vehicle, with the keys in the ignition and the motor running. Brockman testified that his wife had driven to the apartment to pick up her sister, who planned to drive Brockman and his wife home because they had been drinking at a bar and were intoxicated. Brockman claims that while his wife was inside her sister’s apartment, he stepped out of the vehicle to smoke a cigarette and was involved in an altercation. When his wife and sister-in-law came out of the apartment, Brockman again entered the vehicle on the passenger’s side. His wife and another passenger sat in the back seat, and his sister-in-law entered the driver’s seat and started the ignition. The apartment manager came out to investigate the altercation that had occurred, and called the sister-in-law over to discuss it. It was at that time the police officer arrived and observed Brockman in the passenger seat with the driver’s side empty and the car running. Brockman consented to a breathalyzer test. His blood alcohol content was .16 and he was served notice of the revocation of his driver’s license. Brockman was arrested for assault and battery and for APC.

Brockman, at Para. 2.

The Brockman decision supports the contention that the Marshal’s presence in the backseat negated the inference that he intended to drive. Combined with the absence of any facts supporting a DUI charge, e.g., facts showing the Marshal was driving in fact, the Marshal may have a strong case for having the DUI charge dismissed, and based on Brockman, it is questionable whether he could be found guilty of actual physical control.

If you have questions about DUI or APC, contact the attorneys at Bryan & Terrill Law, 918-935-2777.