I think the standard of evidence is pretty light (particularly for the lesser DWI, rather than DUI), so yes its quite easy to “prove”, by the standards of the law, that some was infact impaired enough to warrant a DWI conviction.
Why would someone be immune from prosecution after the fact? It is a law they are not allowed to drive drunk. If it can be proven they were drunk while driving they can be charged, I would assume. The statute of limitations would likely vary.
Technically, yes, but since it is a misdemeanor, there will be no investigative committee showing up at your front door. Of course, if someone is dead or injured because of your drunk driving, then that changes things.
But, I assume you mean regular old DUI, got home, nobody hurt, nobody the wiser. Again, you could, but who is pressing charges, and what evidence do they have? And how could you argue that they are mistaken?
So then the prosecutor would look at your ex-girlfriend and tell her to get lost because her relationship problems are not a matter for the criminal justice system…
There are two basic elements to a DUI/DWI charge.
The first is operation. It must be proved that the suspect was in operation of the vehicle.
The second is impairment due to drug or alcohol. This is proved two ways. One is “per se”. If you have a blood alcohol content of .08% or higher you are considered impaired regardless of your actions. The second is through observation, falling down, pissing on yourself etc. It is usually prefered to go with the per se argument in court since it easier to prove. Judges like numbers.
It is nearly impossible to prove both impairment and operation after the fact.
How can “seemed impaired” even come close to the burden of proof? Believe me it is hard enough to prove impairment without a BAC reading even with a police officer’s testimony and a video tape of the drunk. Any halfassed lawyer can argue that the actions of the driver were due to some other factor. The law states that not only does he have to be impaired but the impairment has to be because of alcohol or drugs.
I can say with certainty that it is by no means common and it is almost impossible to prove.
As always I have to state that I am most familiar with the laws in New Jersey. Most states are similar but there are differences.
The version I had heard (albeit a largely uninformed opinion) was that in alot of states, while DUI does required a large burden of proof (usually including BAC reading), DWI just requires a testimony (usually by a policeman, but in some cases members of public) that the subject appeared to be impaired.
If there’s a scene to be fled – ie, the person caused an accident – and if it was serious, the investigation would probably also look into where else the person was that day. So, while witnesses to the accident saying the driver seemed impaired would help, it’d probably be the bartender at Happy Hours R’ Us saying he’d served the guy four bottles of Stella in an hour that’d make that case.
Anecdote earmuffs on/
In my experience in the ER, if there’s any gap between the event and the presentation, they don’t bother even checking your alcohol level. For example, if you’re brought from the scene of an accident to the ER by ambulance with a BAL of 0.2 they’ll bust you for DUI, but if you flee the scene, and are brought from your home, by ambulance, an hour later, during which interval you can plausibly claim to have consumed enough alcohol to attain a 0.2 (your honor, I was distressed), they’ll bust you for flight and whatever damage you caused, but not the impairement.
Is this a NJ thing? There was a case last week where a guy had just bought a new vehicle, so he was sitting in his driveway listening to the stereo system. He had a bottle of liquor that he was drinking but he was in for the night and wasn’t driving anywhere, he was just playing with his new toy.
So, the neighbors didn’t like the loud noise and called the cops. BLAM, cited for DUI and an open container violation. Again, was not driving had no intention of driving and was sitting in his driveway…
I knew a guy who was busted after the fact, but fought and won in court based on the argument that he could plausibly claim to have consumed enough alcohol to attain a 0.2 (your honor, I was distressed)
He basically said that yes, he put his car in a ditch, then walked home and was so upset he did a bunch of whiskey shots.
This is not contrary to what was said by Loach. Most states have determined that all that is necessary to be guilty of their driving while intoxicated or driving under the influence statutes is that the vehicle be in your control, moving or not, running or not. So parked with you in the drivers seat is “operation.”
I learned that from Everybody Loves Raymond, Debra got “overcelebrated” and decided to wait in the car till Ray came and got her, then she fell asleep. The cop saw her and asked if she was OK. Then came the arrest
The sitcom got it pretty much right, actually. State laws may vary, but in Illinois all it takes to be arrested for DUI is to be within sight of your vehicle and in possession of the keys. Meaning that technically, you can walk out of the bar (or even your house) and head toward your car, and get busted before you even touch the door handle.
I’m not aware of any cases in which this has actually happened, mind you, but the law is intentionally written very broadly to give the cops a lot of latitude.
I wonder what happen to the “Driving” in the acronym DUI and DWI.
Hmm, I go out and get smashed, and have a Designated driver take me home. He drops me off in my driveway, I take my keys out of my pocket to open my front door and a cop is there to arrest me for DUI or DWI.
FTR, I don’t think that would ever happen but IMO, there is something definitely wrong with this picture.