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truck got stuck, had cooler in back

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Pike777

Junior Member
What is the name of your state (only U.S. law)? Nc

My truck got stuck in a ditch on side of the road when pulled over to check my GPS, I couldn't get it out, and while waiting on tow truck started drinking out of cooler that was in back, had vodka and rum and coke mix...
Before tow truck came a cop showed up and gave me a DWI..
can this be beat easily in court? Since I was standing outside truck when he pulled up?
 


tranquility

Senior Member
Cool story bro.

Only problem is that legally you were in control of the car.
I disagree. While North Carolina is an "in control" of vehicle state, the definition of an "operator" is:
(25) Operator. - A person in actual physical control of a vehicle which is in motion or which has the engine running. The terms "operator" and "driver" and their cognates are synonymous.
§ 20-138.1. Impaired driving.

(a) Offense. - A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:

(1) While under the influence of an impairing substance; or

(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or

(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.

(a1) A person who has submitted to a chemical analysis of a blood sample, pursuant to G.S. 20-139.1(d), may use the result in rebuttal as evidence that the person did not have, at a relevant time after driving, an alcohol concentration of 0.08 or more.

(b) Defense Precluded. - The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.

(b1) Defense Allowed. - Nothing in this section shall preclude a person from asserting that a chemical analysis result is inadmissible pursuant to G.S. 20-139.1(b2).

(c) Pleading. - In any prosecution for impaired driving, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the defendant drove a vehicle on a highway or public vehicular area while subject to an impairing substance.

(d) Sentencing Hearing and Punishment. - Impaired driving as defined in this section is a misdemeanor. Upon conviction of a defendant of impaired driving, the presiding judge shall hold a sentencing hearing and impose punishment in accordance with G.S. 20-179.

(e) Exception. - Notwithstanding the definition of "vehicle" pursuant to G.S. 20-4.01(49), for purposes of this section the word "vehicle" does not include a horse. (1983, c. 435, s. 24; 1989, c. 711, s. 2; 1993, c. 285, s. 1; 2006-253, s. 9.)
In a news story on DUI without driving (http://autos.aol.com/article/can-you-get-dui-without-driving/), it mentions one NC case:
Or the case of a North Carolina woman who was arrested at a fast-food joint after she was found asleep behind the wheel with the engine running.
On an attorney's website (http://www.mecklenburgdwi.com/can-someone-be-arrested-for-dwi-in-a-parked-vehicle-in-north-carolina/):
Can someone be arrested for DWI in a parked vehicle in North Carolina?

Under the law in North Carolina someone may be arrested for DWI even if he or she is not driving the vehicle at the time. The law defines a driver and operator for DWI purposes as “ A person in actual physical control of a vehicle which is in motion or which has the engine running.” According to the second part of this definition someone may be arrested and charged with DWI if the car is parked so long as the engine is running at the time.

This law applies to a vehicle that is in a public vehicular area regardless if the vehicle is actually in motion or not. Public vehicular areas are generally any highways, streets, or parking lots. Thus even if someone is parked in a parking lot he or she could still potentially be charged with DWI if he or she is sitting in the vehicle with the engine running. There are some cases in which people have been charged with DWI while being parked in their driveway but this generally happens if officers have seen the vehicle moving on a highway or street soon before parking in the driveway.
So, I think the OP has a case. The key will be if there are any witnesses to events. He should seek out an attorney.
 

Mass_Shyster

Senior Member
I agree it may be possible to beat this. It all depends on whether the judge/jury believes the truck went into the ditch because the driver was already intoxicated, or if they believe he started drinking after the truck got stuck.

In Mass, it's pretty easy to beat a DUI if you manage to get out of the vehicle before anyone sees you. All it takes is lots of money to hire a good lawyer.
 

eerelations

Senior Member
It all depends on whether the judge/jury believes the truck went into the ditch because the driver was already intoxicated, or if they believe he started drinking after the truck got stuck.
Of course the judge will believe his story! This happens to people all the time. Heck, just thinking about calling a tow truck causes me to drink! :rolleyes:
 

tranquility

Senior Member
All the STATE has to PROVE is that he was under the influence when he was an operator of the vehicle BEYOND A REASONABLE DOUBT. Not suppose. Not think. Prove.
 

justalayman

Senior Member
All the STATE has to PROVE is that he was under the influence when he was an operator of the vehicle BEYOND A REASONABLE DOUBT. Not suppose. Not think. Prove.
so does a BAC of some level, and possibly a second bac to check for rising or falling BAC, and the OP's statement of when he last drove enough to pin it on him if the BAC checks support having been DWI during the time period OP cops to?
 

tranquility

Senior Member
so does a BAC of some level, and possibly a second bac to check for rising or falling BAC, and the OP's statement of when he last drove enough to pin it on him if the BAC checks support having been DWI during the time period OP cops to?
I think they have to prove he was an operator while under the influence. To show a rising or falling rate and extend it to time he was admittedly driving is going to cost a lot more in experts and require a gathering of evidence more precisely at the time of the incident the state and the officer(s) would feel appropriate for a misdemeanor. I suppose it would be possible to do so in theory. In reality? Also, it seems a bit unsporting for the driver to not be able to use a defense of rising BAC for the per se limit (Because of the term "at any relevant time after the driving" in the statute.) while being able to use such an argument to find him guilty.
 

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