How can someone get a DWI if they weren't driving?

Posted by Eric Olson | Jul 16, 2018 | 0 Comments

You may have heard of someone being arrested and charged for DWI when they were not driving. Perhaps they were sleeping off a night of drinking in their car or sitting and listening to the radio. There is a common misconception that a police officer must see someone driving down the road in order to arrest them for DWI. However, in Minnesota, and many other states, this is not the case. Minnesota law makes it a crime to be "in physical control" of a vehicle while under the influence. See Minn. Stat. 169A.20. The idea is to reduce danger to the public by allowing officers to make an arrest before an intoxicated person has the opportunity to drive. 

The language of the statute raises an important question. What does "in physical control" mean in a practical sense. It is obvious that you are in physical control of a vehicle while you are driving it, but can someone be in physical control at other times? Minnesota law says yes. A related misconception is that in order to have physical control of a vehicle, the keys must be in the ignition. This is also incorrect because you can be arrested for DWI if the keys are in your purse, pocket, or hidden under the seat. 

A recent unpublished Minnesota Court of Appeals decision highlights another interesting situation involving a DWI where someone was not driving when contacted by an officer. In State of Minnesota v. Justin Donald Lubins, an officer saw someone driving a motor scooter and then later saw someone standing on the side of the road next to a motor scooter that was leaking fuel from its carburetor. The scooter would not start and was inoperable. 

Upon making contact with Mr. Lubins, the officer discovered that Lubins was under the influence of alcohol and had a license that had been cancelled inimical to public safety. The officer arrested Lubins and he was eventually convicted by a jury of first-degree DWI and driving after cancellation (Yes, you can get a DWI on a motor scooter). 

Lubins appealed arguing that the jury should have been instructed that they could consider whether the vehicle was inoperable in making their decision. The Court of Appeals disagreed because the officer had observed Mr. Lubins driving the scooter and Mr. Lubins admitted that he had been driving while talking to the officer. 

This case shows that you can get a DWI even if you are not driving when an officer makes contact with you and your vehicle is inoperable. In order to ensure you can avoid a DWI charge for being "in physical control" of a vehicle, it is important to make sure that the police do not think that you were, are, or are about to drive your vehicle. If you have been charged with a DWI for being in physical control of a vehicle, consult with an experienced DWI attorney because there may be a defense to the charge or charges. 

About the Author

Eric Olson

Eric J. Olson has dedicated his career exclusively to criminal law, with a focus onDWI defense. For the past 16 years, Mr. Olson has developed a reputation in the legal community as an aggressive, compassionate advocate for his clients.


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