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DWI yet not driving?

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What is the name of your state? Va

Last night a girlfriend and I went out, we both had one glass of wine and shared a second. We then pulled into a school parking lot to chat. About three minutes later a police officer came and asked her to get out of the car. The keys were not in the ignition, in fact they were on my side of the car because I was looking at her key chain she had just gotten. The car was off. The officer asked her to take all sorts of sobriety tests, she passed, then asked her to take a breathalyzer, she knew she had just had wine and she declined, so she was put under arrest. At the jail she did blow a .10 (in VA .08 is legally drunk).

My questions are do the police have to read the "Miranda Rights" when someone is being handcuffed and taken to jail? How can they arrest her for a DWI when she wasn't driving at the time and the keys were not even in her hands/car ignition etc? I appreciate your help in advance, She knows she'll have to get a lawyer, but I told her I would ask what all of you thought about what actually took place.

Thanks,

FG
 


CavemanLawyer

Senior Member
If the cops showed up 3 mins after she was driving, it is possible that they actually saw her driving, which is all it takes to put her behind the wheel.

If she blew a .10 than there is no way she only had 1.5 glasses of wine. Even for someone very tiny it'd still take at least 4 or 5 drinks to get to that level.

Miranda warnings are only necessary after being placed under arrest if the officer wants to ask you questions. The warnings typically are not given at the time of arrest like in the movies.
 
I do appreciate your response, but I know that we only had 3 glasses of wine total. I charged it and even went to the place we had the wine and got the receipt with the time stamp on it. We are both little I was thinking that maybe because we drank them in a quicker manner, then that was why she blew the .10 or maybe something was wrong with the breathalyzer. Hopefully, after she contacts an attorney who practices in our county, she'll get the whole scoop. Thank you for your time. Oh and the ironic part is we were honest with the officer, and he let me drive her car home??? Take care and hope you had a wonderful Holiday weekend.....

Peace :)

FG
 

LakersFan

Member
If they didn't see her drive and don't know how long you were parked there should help considering there was no PBT. A lawyer can use the rising BAC theory as a defense.
 

BigMistakeFl

Senior Member
BigMistakeFl

No, sorry..... your friend consumed more than the wine on your tab. Either she sneaked other drinks while you weren't looking or she had a few before the two of you went out. One and a half standard glasses of wine could not achieve a BAC of 0.10.
 

FlyingRon

Senior Member
There's no requirement for them to see you driving. There's no requirement that the keys be in the ignition. Your assertions about how much you drank together are going to scuttle the rising BAC argument. Keep your freaking mouth shut. She's got a tough case, over the per se limit and probably failed the FST's as well.
 

JustAPal00

Senior Member
She was in the drivers seat, the keys were in the drivers compartment, thus she was in control of the vehicle. That is why she got a DUI.
 
After speaking to three attorneys in our area, since the officer lost visual and did not pull her over "if" he observed any dwi behavior, then there is no way of the officer knowing that we weren't sitting in the car drinking then. Which is legal due to the fact the car was not being operated, or the keys were in no way in the ignition. Also, since she has the receipt and bill from that evening, and the fact that the bartender who served her has agreed to testify to that fact of how much was served. etc...She still has a trial and pay for an attorney, but it seems the "visual" thing is a very important part of a DWI here in VA. Now of course they could have charged her with drinking in public if we were drinking in the car.

Apparently it takes up to 2 hours for the BAC to go up and especially after you've eaten. I appreciate all your help, but Lakersfan you seem to have given the best advice. Thank you very much, because at least you gave her alittle hope last night.

Peace :)

FG
 

paguy88

Member
I love this only 1.5 glasses of wine...

Ok i can believe you no reason not too...

however do you know how much alcohol was in the wine?

how many ounces of alcohol where in the glass you guys drank from?

was sher tired?

how much does she weigh?

how much did she eat?

how fast does her body comsume the alcohol?

3 of these question I know you don't know but they are major factors in determining your BAC.

all these facts come into play when drinking... if you don't know each of them EXACTLY which no one does then you may be over the legal limit... and yes only 1.5 glasses of wine could get you over the limit easly....


this is what no one tell you about drinking all the factors that come into play....


GET A GOOD LAWYER ASAP for your GF

BTW nice move paking in a school lot or where ever "only talking" that use to be my move with the ladies.... hahahaha
 

CavemanLawyer

Senior Member
There's no requirement for them to see you driving. There's no requirement that the keys be in the ignition.
That is completely untrue. For any DWI you've got to wheel the Defendant. That means you have to prove beyond a reasonable doubt that they actually operated the vehicle. Sitting in the driver's seat is not operation. How much you have to do to wheel the defendant depends on the jurisdiction but I believe the bare minimum anywhere is that the keys were at least in the ignition.
 

fairisfair

Senior Member
That is completely untrue. For any DWI you've got to wheel the Defendant. That means you have to prove beyond a reasonable doubt that they actually operated the vehicle. Sitting in the driver's seat is not operation. How much you have to do to wheel the defendant depends on the jurisdiction but I believe the bare minimum anywhere is that the keys were at least in the ignition.
I respectfully disagree. Many states, including my own (not VA) consider being in "control" of the vehicle to equate to actually driving the vehicle, and you can be charged with DUI, the keys do not have to be in the ignition. Although I was able to find reference to the "being in control" aspect of VA DUI law, I was unable to find the actual statute.
 

CavemanLawyer

Senior Member
fairisfair, the definition of operation IS having control over the vehicle. We're talking about the same thing. Like I said, it's that meaning of "control" that varies from one jurisdiction to another. If you look you will see that virtually all states require at the bare minimum that the keys be in the ignition or that the vehicle is otherwise caused to move (ex: pop it in neutral and push it down a hill.)

For instance the rule in Virginia is that the keys must be in the ignition and that the engine actually be turned on in order for one to be operating the vehicle. Stevenson v. City of Falls Church. The DWI statute is §18.2-266. It just uses the phrase, "operate a motor vehicle" and does not define operate. Most states do not statutorily define operation either. Through Virginia caselaw, "operating" is defined as producing a physical effect or engaging in a mechanical aspect of the vehicle. This definition is substantially similar to that used in most jurisdictions. In the above case the Virginia Sup. Court held that you are not an operator just by having the keys in the ignition, you've got to actually turn the car on.

I'm going to say it again because I am quite positive about this. Just sitting in a car while intoxicated is not enough for DWI. I suppose there might be some rogue state out there, but in virtually every state of this country the bare minimum to wheel the defendant is that the keys be in the ignition. In many states the ignition must also be turned on.
 
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CavemanLawyer

Senior Member
Could be Ohiogal, or he could have had the keys in the ignition. Based on experience, I'd bet that he passed out with the car still running.
 
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Ohiogal

Queen Bee
Could be Ohiogal, or he could have had the keys in the ignition. Based on experience, I'd bet that he passed out with the car still running.
Actually the video news report showed a lot and the car was turned off not running. He said he had gotten tired and was sitting in his car sleeping so as not to sleep drive.
 

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