# Public Intoxication and DUI Questions **URL:** \ **Category:** In My Humble Opinion\ **Created:** [April 29, 2014, 2:51pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278 "2014-04-29T14:51:16Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Meloy](https://avatars.discourse-cdn.com/v4/letter/m/58f4c7/32.png) [@Meloy](https://boards.straightdope.com/u/Meloy)\ **Post date:** [April 29, 2014, 2:51pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/1 "2014-04-29T14:51:16Z")
I’ve googled some and have already contacted an attorney but I do not know how long it will them for her to get back to me and nothing I am finding on Google is that relevant to my own issue. I was arrested for Public Intoxication and Obstructing Traffic on Sunday night in southeastern Tennessee. I was released on bail on Monday and court was this morning. My hearing was then delayed to June because the DA wanted to talk to the arresting officer to find out why I was not arrested for a DUI as I was in my (non-moving) car at the time. I honestly don’t remember if it was running or if the keys were in the ignition, but we were both in the street. My record to date is pretty clean. My only serious run-in with the law prior to this weekend was dropped and the record expunged so traffic related offenses should be all the show up on my record, and the last one of those was 2.5 years ago. That being said, is it all likely that the DA will override the arresting officer’s charge and turn the Public Intox and Obstruct Traffic charges into a DUI? I know YANAL and this isn’t binding and so on and so forth. I am just curious and would like something to go on while I wait for the one I’ve contacted to call me back. ---
**Author:** ![Kimballkid](https://avatars.discourse-cdn.com/v4/letter/k/b5a626/32.png) [@Kimballkid](https://boards.straightdope.com/u/Kimballkid)\ **Post date:** [April 29, 2014, 3:01pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/2 "2014-04-29T15:01:58Z")
I don’t know if it’s possible the DA will charge you with a DUI, but the elements of DUI are present as you were: 1. Under the influence of an intoxicating substance. 2. In physical control of the vehicle. For you to have physical control of the vehicle, you just have to be sitting in it. It does not have to be running or have the keys in the ignition. IANAL obviously. Information taken from [here](http://www.stegall-law.com/DUI_Defense_Attorney_in_Memphis_Tennessee ___Shelby_County_DUI_Lawyer___ Charged_with_Drinking_and_Driving.html). ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [April 29, 2014, 3:30pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/3 "2014-04-29T15:30:26Z")
> [@Meloy](#): > > That being said, is it all likely that the DA will override the arresting officer’s charge and turn the Public Intox and Obstruct Traffic charges into a DUI? He is not overriding the officer. He is adding an additional charge if the evidence supports it. There is nothing wrong with that as long as he has probable cause. He may run into problems if the elements of the public intoxication charge are different than DUI. For instance here for DUI it has to be proven that you were over .08%BAC or impairment needs to be proven. Did he prove impairment? Did he even try? I can’t speak about what is needed for public intoxication since we don’t have that law in NJ. ---
**Author:** ![engineer\_comp\_geek](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/engineer_comp_geek/32/504_2.png) [@engineer\_comp\_geek](https://boards.straightdope.com/u/engineer_comp_geek)\ **Post date:** [April 29, 2014, 4:08pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/4 "2014-04-29T16:08:23Z")
**Moderator Action** Legal questions belong in our IMHO forum. Please note that, as the forum name indicates, any answers you get there are just the opinions of some online folks and shouldn’t be taken as the equivalent of professional legal advice. Moving thread from General Questions to In My Humble Opinion. ---
**Author:** ![Meloy](https://avatars.discourse-cdn.com/v4/letter/m/58f4c7/32.png) [@Meloy](https://boards.straightdope.com/u/Meloy)\ **Post date:** [April 29, 2014, 4:28pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/5 "2014-04-29T16:28:42Z")
> [@Loach](#): > > He is not overriding the officer. He is adding an additional charge if the evidence supports it. There is nothing wrong with that as long as he has probable cause. > > He may run into problems if the elements of the public intoxication charge are different than DUI. For instance here for DUI it has to be proven that you were over .08%BAC or impairment needs to be proven. Did he prove impairment? Did he even try? I can’t speak about what is needed for public intoxication since we don’t have that law in NJ. I am not disputing the validity of the current charges or whether or not the DA is wrong in adding a DUI charge to them. I am just curious as to the likelihood that I am going to have to fight a DUI charge. There was no bloodwork or breathalyzing done that I remember. ---
**Author:** ![SmellMyWort](https://avatars.discourse-cdn.com/v4/letter/s/ea5d25/32.png) [@SmellMyWort](https://boards.straightdope.com/u/SmellMyWort)\ **Post date:** [April 29, 2014, 4:34pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/6 "2014-04-29T16:34:16Z")
Maybe you shouldn’t fight it and just pay your dues for endangering society. Reading between the lines it sounds like you were passed out with your car parked in the middle of the road. I doubt it was teleported there. ---
**Author:** ![chicagowhitesox1173](https://avatars.discourse-cdn.com/v4/letter/c/46a35a/32.png) [@chicagowhitesox1173](https://boards.straightdope.com/u/chicagowhitesox1173)\ **Post date:** [April 29, 2014, 4:36pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/7 "2014-04-29T16:36:33Z")
Do not plea out. Tell your lawyer even if it’s a public defender that you want to fight the charges. Do not accept a DUI conviction. If there was no tests performed, I don’t think they can do much except for scare you into accepting a plea. I was in a similar situation but I really was innocent, it was a girl I knew who told the cops I was driving. Regardless I had to get a lawyer and my very own lawyer kept telling me to accept a plea, I refused all the way to the end and the case was finally dropped. It did cost me some money so hopefully you qualify for a public defender. ---
**Author:** ![chicagowhitesox1173](https://avatars.discourse-cdn.com/v4/letter/c/46a35a/32.png) [@chicagowhitesox1173](https://boards.straightdope.com/u/chicagowhitesox1173)\ **Post date:** [April 29, 2014, 4:39pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/8 "2014-04-29T16:39:35Z")
My advice never drink and drive again, you don’t want this DUI even if you were guilty. All it will do is hurt you from going to work and probably hurt your family by having to take you to work. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [April 29, 2014, 5:33pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/9 "2014-04-29T17:33:22Z")
> [@Kimballkid](#): > > I don’t know if it’s possible the DA will charge you with a DUI, but the elements of DUI are present as you were: > > 1. Under the influence of an intoxicating substance. > 2. In physical control of the vehicle. \*\*For you to have physical control of the vehicle, you just have to be sitting in it. \*\* It does not have to be running or have the keys in the ignition. YMMV depending on location. But usually to have “physical control” of the vehicle just being in it is not enough. The defendant needs to possess, or have close proximity access to the ignition keys. They do not have to be in the ignition. A drunk sitting in a car but with no way to operate the car is not going to get convicted of DUI nor OWI, unless it can be shown that he somehow drove the car there and then disposed of the keys. I am are not is a lawyer, yadda yadda yadda. ---
**Author:** ![Gray\_Ghost](https://avatars.discourse-cdn.com/v4/letter/g/c0e974/32.png) [@Gray\_Ghost](https://boards.straightdope.com/u/Gray_Ghost)\ **Post date:** [April 29, 2014, 6:45pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/10 "2014-04-29T18:45:11Z")
I’m not a lawyer, and this isn’t legal advice. It sounds like you need a lawyer, so stop asking us for advice, and go get one. That said, _[State v. Lawrence](https://www.courtlistener.com/tenn/9Q5Q/state-v-lawrence/)_, 849 S.W. 2d 761 (Tenn. 1993) looks to be on point as to what “to be in physical control of any automobile” means with regards to Tenn. Code Ann. § 55-10-401 (the DUI statute) [Tennessee has this asinine set-up with Lexis that prevents direct linking to the statute, unlike every other friggin state’s laws that I’ve had to ever look up. So I’ll quote the statute in its entirety below.] > [@](#): > > 55-10-401. Driving under the influence prohibited – Alcohol concentration in blood or breath. > > It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, any shopping center, trailer park, apartment house complex or any other location which is generally frequented by the public at large, while: > > (1) Under the influence of any intoxicant, marijuana, controlled substance, controlled substance analogue, drug, substance affecting the central nervous system or combination thereof that impairs the driver’s ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of himself which he would otherwise possess; > > (2) The alcohol concentration in the person’s blood or breath is eight-hundredths of one percent (0.08%) or more; or > > (3) With a blood alcohol concentration of four-hundredths of one percent (0.04%) and the vehicle is a commercial motor vehicle as defined at § 55-50-102. In _Lawrence_, the defendant was passed out behind the wheel of his truck, with the keys in his pocket, and the truck “blocking” a “very narrow” gravel public road. The court held he had, > [@](#): > > …the present physical ability to direct the vehicle’s operation and movement. The Defendant could have at any time started the engine and driven away. From a mechanical standpoint, the vehicle was capable of being immediately placed in motion to become a menace to the public and to its drunken operator. The Court also mentioned that Tennessee would adopt a “totality of the circumstances” approach to determining whether a defendant was in physical control or not. > [@](#): > > …the test allows the trier of fact to take into account all circumstances, i.e., the location of the defendant in relation to the vehicle, the whereabouts of the ignition key, whether the motor was running, the defendant’s ability, but for his intoxication, to direct the use or non-use of the vehicle, or the extent to which the vehicle itself is capable of being operated or moved under its own power or otherwise. Which sounds great, but is awfully hard to predict ahead of time which totality equals a criminal violation and which totality doesn’t. Lawrence’s conviction was upheld, incidentally. A later case, [_State v. Turner_](https://www.courtlistener.com/tenncrimapp/8MrU/state-v-turner/), 953 S.W. 2d 215 (Tenn. Crim. App. 1996), held that intent didn’t matter and that the Legislature intended DUI to be a strict liability offense: > [@](#): > > Thus, by defining the offense of driving under the influence to encompass the mere physical control of a vehicle, the legislature clearly signaled its intention to create a crime imposing strict liability. It is for the legislature to determine whether the public injury threatened by those driving under the influence is so great as to justify imposition of strict liability. Turner’s conviction was upheld too. IMHO, getting rid of intent as an element of a crime like a Tennessee Class A misdemeanor, is so wrong it hurts, but that’s criminal law these days. No idea how the above two cases have been construed in the last 15-20 years. Did the officer mention why s/he wasn’t charging you with DUI? ---
**Author:** ![Kimballkid](https://avatars.discourse-cdn.com/v4/letter/k/b5a626/32.png) [@Kimballkid](https://boards.straightdope.com/u/Kimballkid)\ **Post date:** [April 29, 2014, 7:01pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/11 "2014-04-29T19:01:44Z")
> [@pkbites](#): > > YMMV depending on location. But usually to have “physical control” of the vehicle just being in it is not enough. The defendant needs to possess, or have close proximity access to the ignition keys. They do not have to be in the ignition. A drunk sitting in a car but with no way to operate the car is not going to get convicted of DUI nor OWI, unless it can be shown that he somehow drove the car there and then disposed of the keys. > > I am are not is a lawyer, yadda yadda yadda. Well, the OP does say they were ‘both sitting in the street’, so s/he must have driven the car there. I assume by ‘both’ s/he means her/him and the car, but that part isn’t really clear. ---
**Author:** ![Meloy](https://avatars.discourse-cdn.com/v4/letter/m/58f4c7/32.png) [@Meloy](https://boards.straightdope.com/u/Meloy)\ **Post date:** [April 29, 2014, 8:17pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/12 "2014-04-29T20:17:10Z")
I’ve talked to and retained an attorney, so I have as concrete of an answer as I’m going to get until whatever happens happens, which is “Maybe?”. Thanks to those that answered in good faith in the meantime. I appreciate it. ---
**Author:** ![chicagowhitesox1173](https://avatars.discourse-cdn.com/v4/letter/c/46a35a/32.png) [@chicagowhitesox1173](https://boards.straightdope.com/u/chicagowhitesox1173)\ **Post date:** [April 29, 2014, 8:30pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/13 "2014-04-29T20:30:51Z")
> [@Meloy](#): > > I’ve talked to and retained an attorney, so I have as concrete of an answer as I’m going to get until whatever happens happens, which is “Maybe?”. > > Thanks to those that answered in good faith in the meantime. I appreciate it. Make sure you fight this. It will cost you but it’s gonna really cost you if your found guilty of DUI. Like I said, I bet even your lawyer will ask you to do a plea. Do not do that. Unless there is a video of you driving, your going to get off this. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [April 29, 2014, 10:30pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/14 "2014-04-29T22:30:03Z")
> [@Meloy](#): > > I’ve talked to and retained an attorney, so I have as concrete of an answer as I’m going to get until whatever happens happens, which is “Maybe?”. > > Thanks to those that answered in good faith in the meantime. I appreciate it. That’s probably the correct answer. 😃 It actually sounds more like the prosecutor is questioning whether the officer did his due diligence which is more trouble for him rather than you. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [April 29, 2014, 10:32pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/15 "2014-04-29T22:32:53Z")
> [@chicagowhitesox1173](#): > > Make sure you fight this. It will cost you but it’s gonna really cost you if your found guilty of DUI. Like I said, I bet even your lawyer will ask you to do a plea. Do not do that. Unless there is a video of you driving, your going to get off this. That is horrible advice. He may very well be found not guilty but his lawyer who gets to see all of the evidence is in a much better position to tell his chances. If the burden of proof for DUI cases was having a video of someone driving there would never be a conviction. That is obviously not the case. ---
**Author:** ![chicagowhitesox1173](https://avatars.discourse-cdn.com/v4/letter/c/46a35a/32.png) [@chicagowhitesox1173](https://boards.straightdope.com/u/chicagowhitesox1173)\ **Post date:** [April 29, 2014, 10:39pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/16 "2014-04-29T22:39:47Z")
> [@Loach](#): > > That is horrible advice. He may very well be found not guilty but his lawyer who gets to see all of the evidence is in a much better position to tell his chances. If the burden of proof for DUI cases was having a video of someone driving there would never be a conviction. That is obviously not the case. It’s not horrible advice when he’s asked to take a plea and has to end up spending 15 grand in rehab and court fees not to mention having to attend DUI classes which doesn’t help anyone anyways and losing his licence for a few years. The second his lawyer asks him to accept a plea, he needs to fight it at all costs. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [April 29, 2014, 10:48pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/17 "2014-04-29T22:48:54Z")
> [@chicagowhitesox1173](#): > > It’s not horrible advice when he’s asked to take a plea and has to end up spending 15 grand in rehab and court fees not to mention having to attend DUI classes which doesn’t help anyone anyways and losing his licence for a few years. The second his lawyer asks him to accept a plea, he needs to fight it at all costs. Sure its horrible advice if the alternative is worse. A lawyer who has seen all of the discovery is in a much better position to hand out advice and explain the best strategy than an anonymous White Sox fan on a message board who has one anecdote. And a lawyer will do whatever you want and continue to cash your checks even in a losing cause. As long as you listen to his advice and state you are going against it. There is no need to fight your own lawyer. He works for you. Don’t like him? Get another one. ---
**Author:** ![bobot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bobot/32/21622_2.png) [@bobot](https://boards.straightdope.com/u/bobot)\ **Post date:** [April 29, 2014, 11:27pm UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/18 "2014-04-29T23:27:08Z")
Of course, meloy, your attorney will know the law in Tenessee. Your lawyer will also know the _customs_ in your jurisdiction. By this I mean that the decision to fight a DUI charge is influenced by the State’s Attorney’s willingness to negotiate/plea bargain. If the State is willing to bargain, and you have a DUI charge, jump on that deal! In Cook County, Il. it is well known that the State’s Attorney refuses to plea bargain DUI charges. This actually clears up the decision making process of the accused, it almost becomes a binary deal: plead guilty and take thy lumps, or fight it and hope to win. Your Lawyer is the one to speak to about this. Your lawyer will consider things you haven’t even considered, like the 4th amendment, the arrest procedures, etc. Call it an anecdote if you wish, but I happen to know one very happy person who was on the right side of a “motion to quash”. ( is that a word? ) Again, your lawyer is the one to talk to. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [April 30, 2014, 12:09am UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/19 "2014-04-30T00:09:41Z")
> [@Meloy](#): > > … My hearing was then delayed to June because the DA wanted to talk to the arresting officer to find out why I was not arrested for a DUI as I was in my (non-moving) car at the time. (post shortened and underline added) The arresting officer wasn’t in court? Who was going to testify, under oath, that you were drunk, or in your car, or in the street? Did the DA postpone your case because the arresting officer hadn’t appeared and the DA would have had to drop the charges against you for lack of evidence? ---
**Author:** ![Meloy](https://avatars.discourse-cdn.com/v4/letter/m/58f4c7/32.png) [@Meloy](https://boards.straightdope.com/u/Meloy)\ **Post date:** [April 30, 2014, 12:20am UTC](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278/20 "2014-04-30T00:20:02Z")
He didn’t speak directly to me. He was behind my back and talking to the judge, in front of me. The only part of what I heard him say is that. Neither he, the judge, nor my attorney seemed to care that he was not there so I don’t think he needed to be there. As to the people telling me to talk to an attorney, read the first and last sentences of my OP and my last post before this one. This thread was posted while I was waiting for my attorney to call back after I had left a message with her receptionist. [Next page](https://boards.straightdope.com/t/public-intoxication-and-dui-questions/687278.md?page=2)