Can I be charged for DUI even if I am not drunk? 61 Answers as of June 20, 2013

I have an open bottle of rhum in my glove compartment. I have not taken any alcohol when an officer stopped me. He saw the bottle of alcohol and charged me with DUI. I was not asked to take the breath analyzer. Can I be charged for DUI even if I am not drunk? Isn't it negligence on the part of the officer that I was not asked to take the breath analyzer?

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Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
You may have a valid defense to the DUI charge. You should consult with an experienced DUI attorney.
Answer Applies to: Kansas
Replied: 3/6/2012
Freeborn Law Offices, P.S.
Freeborn Law Offices, P.S. | Steve Freeborn
You have not given me enough info about your case, but if you are not drunk (your driving was not affected to an appreciable degree), then a DUI charge is unlikely. You do not tell me if there were drugs in your system. You can be DUI if drugs impacted your driving.
Answer Applies to: Washington
Replied: 3/5/2012
Gregory Casale Attorney at Law
Gregory Casale Attorney at Law | Gregory Casale
The standard for charging you with a crime is "probable cause" which is far lower than the standard for proving you guilty, which is "beyond a reasonable doubt." Therefore, the officer is probably within his duty to charge you, but you should definitely hire a good lawyer who can beat the charge for you.
Answer Applies to: Massachusetts
Replied: 3/5/2012
Klisz Law Office, PLLC
Klisz Law Office, PLLC | Timothy J. Klisz
Sounds very strange to me. It may be a very beatable case if you had no alcohol in your system.
Answer Applies to: Michigan
Replied: 3/5/2012
Aaron Black Law
Aaron Black Law | Aaron Black
Yes you can be charged with a DUI even if you were not drunk. You can be prosecuted for being impaired to the "slightest degree."
Answer Applies to: Arizona
Replied: 3/5/2012
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    You can be charged with DUI if in the officer's opinion you are driving a motor vehcile while impaird by alcohol to the extent you are not able to safley operate a motor vehicle. The officer's opinion as to whether you had consumed alcohol or not may differ from yours. The fact that you wre not offered a breath test may or may not be in your favor, depending on the circumstances.
    Answer Applies to: Alabama
    Replied: 3/5/2012
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    DUI is driving under the influence of alcohol for those under 21. DWI is driving while intoxicated. You can be convicted of DUI on if you had been drinking. You can be convicted of DWI if you were intoxicated whether by alcohol or drugs. You should hire a lawyer.
    Answer Applies to: Texas
    Replied: 3/5/2012
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    They did not take any breath or blood tests? You should be charged with open intoxicants not OUIL. You need an attorney.
    Answer Applies to: Michigan
    Replied: 3/5/2012
    Cornish, Crowley, Rockafellow, & Sartz, PLLC
    Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
    Simply because a person is charged does not mean they will ultimately be convicted. A person is presumed innocent until proven guilty beyond a reasonable doubt. Any charged with a criminal offense has a right to counsel. Obviously, open alcohol containers within the control of the driver are potentially grounds for a civil infraction and certainly could be offered as circumstantial evidence that a person was intoxicated or impaired while driving. Generally, OUI's require more evidence than a few open alcohol containers for a prosecutor to prove their case beyond a reasonable doubt, but it depends on the circumstances. I'd recommend you consult with an attorney regarding this matter. Most attorney provide free initial consultations.
    Answer Applies to: Michigan
    Replied: 3/2/2012
    DeVito & Visconti, PA
    DeVito & Visconti, PA | John E DeVito
    In Massachusetts you can be charged with DUI/OUI if you are not drunk. The standard in Massachusetts is whether your ability to operate a motor vehicle safely was impaired, not whether you were drunk. The fact that you had an open container in your glove box may be relevant to the charge of OUI; but, the prosecution will have to prove more than mere possession of alcohol, they must prove that you were impaired by the alcohol.?Proving impairment is usually done with the assistance of a breath test and field sobriety tests. Because you were not offered a breath test they have no scientific evidence to suggest that you are under the influence of alcohol. Field tests can be easily challenged by a competent? OUI attorney. If there was no accident in your case, you have a case that you should consider taking to trial.
    Answer Applies to: Massachusetts
    Replied: 3/2/2012
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    Your case sounds like one that could be defended and perhaps a dismissal could be achieved. However, much more needs to be known and even more needs to be done, to try to get to that result.
    Answer Applies to: Michigan
    Replied: 3/2/2012
    Dungan, Lady, Kirkpatrick & Dungan PLLC | Michael Dungan
    Nothing about your description of what happened sounds typical. Were you arrested by Barney Fife? It sound like a great open intox case, but from what your report, it will be difficult for the prosecutor to prove you guilty of drunk driving.
    Answer Applies to: Michigan
    Replied: 3/2/2012
    Attorney & Counselor at Law
    Attorney & Counselor at Law | John Hugger
    You should have been offered a choice between a breath or blood test unless the officer states that you refused the test. You should have only bveen ticket with a summons for an open container in the vehicle. Consult with an attorney or legal aid IMMEDIATELY. If you refused or tested at or over 0.08% BRAC the officer would give you a Notice and Affidavit of Revocation allowing you to drive for seven days while you have an opportunity to request a DMV (Department of Motor Vehicle) hearing; after seven days your licensed would be revoked not allowing you to drive a motor vehicle. If you timely request the hearing you would be allowed to drive for up to sixty days or the date of the hearing, whichever is earlier. Consult with an attorney before requesting the hearing if timely possible.
    Answer Applies to: Colorado
    Replied: 3/2/2012
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    Yes, you can be charged. Yes, you probably should have been Breathylized. No, you will have to hire a lawyer and defend yourself. You may have a civil Claim for false arrest.
    Answer Applies to: New York
    Replied: 3/2/2012
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    It would be doubtful that you could be convicted without a breath test.
    Answer Applies to: Nebraska
    Replied: 3/2/2012
    Goodgame Law, LLC
    Goodgame Law, LLC | Jeffrey L Goodgame
    A DUI charge can result in serious consequences including a fine up to $2,100 for a first offense, up to a 1 year jail sentence, and suspension of your driver?s license for 90 days. You should consult a DUI attorney to advise you in this matter. The fact that you had an open container does not by itself prove that you were impaired while driving. An experienced DUI attorney can challenge that prosecutors case in several ways.
    Answer Applies to: Alabama
    Replied: 3/2/2012
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    To be charged with OWI, you must have a blood alcohol level of at least 0.08. To obtain a conviction, the prosecutor would have to prove you were drunk, i.e. a BAC of 0.08 or greater. You should consult with an attorney in this matter.
    Answer Applies to: Michigan
    Replied: 3/2/2012
    The Law Offices of Victor J Mazzaraco
    The Law Offices of Victor J Mazzaraco | Victor J Mazzaraco
    Why did he stop you? Were you weaving? Speeding? Did he say why he stopped you? Do you think having a bottle of rum in the glove box is something that won't sound particularly good to a jury you are trying to convince you weren't drunk, while clean-cut Johnny law is doing his job, keeping the roads safe for the god fearing folk innocent people are accused of crimes every day. Every single day. And the system does shuffle them on through, because everybody has a story...including the innocent...so you can be charged with dui without being drunk.
    Answer Applies to: California
    Replied: 3/2/2012
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    The officer had no right to search your glove box unless you gave him consent. You should retain a good criminal law firm like my office to handle the case. The charges can be dismissed if the search was illegal. The officer can charge you with DWI if he believes you are intoxicated. He does not have to do a breath test or field sobriety tests, he can simply rely on his observations. The fact that he did not do either would help your case. It was not a good idea to have an open bottle of rum in the vehicle, especially if there was some left in the bottle and you smelled like Captain Morgan.
    Answer Applies to: New York
    Replied: 3/2/2012
    Hammerschmidt Broughton Law
    Hammerschmidt Broughton Law | Mark A. Broughton
    That's a strange one. The officer needs probable cause to arrest you for DUI. This is derived from observed erratic driving, field sobriety tests, and of course, a blood alcohol test. An open container of alcohol alone is not enough to arrest for a DUI, although it is an offense itself. If you refused to take a chemical test - that's another story. By the way, it is not "drunk" driving, it is driving "under the influence" of alcohol, and/or driving with a blood alcohol level of .08 or greater.
    Answer Applies to: California
    Replied: 3/2/2012
    Law Office of Thomas A. Medford, Jr., PC
    Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
    Based on the facts as you have presented them there may be a question whether the DUI charged and the trier of fact, either a jury or the judge will have to resolve the issue. I would urge you to consult an attorney.
    Answer Applies to: District of Columbia
    Replied: 3/2/2012
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    Sounds like you should not have been arrested although there is nothing you can do about it if you were. If there is not a chemical test showing you were intoxicated the case will not issued by the DA's office. If it is for some reason, you have a defense.
    Answer Applies to: California
    Replied: 3/2/2012
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    You can be charged with DUI by impairment, which is supposed to be by reason of alcohol or drugs, or having a blood alcohol level greater than .08. It is difficult based on the question to know what you were charged with. If you did not take a breath test, impairment is still a possibility, but without the test, or a refusal charge, the state's case, at first blush, seems weak.
    Answer Applies to: Hawaii
    Replied: 3/2/2012
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    The officer can charge you but the issue is whether he has sufficient proof to make the charge stick against you. If there are no other signs of being under the influence observed by the cop, except the open bottle in your glove box, you should be able to win a trial, or even have the prosecuting attorney drop the charges. I do not know the reason you were not asked to submit to a breath test, that would be something you need to discuss with an attorney, which I would strongly suggest you do, as there may be incriminating evidence against you that you are not aware of.
    Answer Applies to: Illinois
    Replied: 3/2/2012
    Law Office of Patrick E. Donovan, PLLC
    Law Office of Patrick E. Donovan, PLLC | Patrick E. Donovan
    They can charge you, but having a bottle of liquor in your car doesn't mean you were impaired. It is unusual that the officer didn't ask you to take a breath test. Fight the case.
    Answer Applies to: New Hampshire
    Replied: 3/2/2012
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    CAN they charge you? Of course. Whether you can be convicted is a different question. You can be charged solely on the basis of his observation, just like any criminal or traffic offense. You will be surprised to find how detailed the police report is concerning your observed inebriated and impaired condition, if that is what he is claiming. Of course you can fight the charges. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, can you be convicted, and what can you do? Raise all appropriate defenses with whatever witnesses, evidence and sympathies are available for legal arguments, for evidence suppression or other motions, or for trial. If you don't know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney that does, who will try to get a dismissal, diversion program, reduction, or other decent outcome through plea bargain, or take it to trial if appropriate. A little free advice: When charged or arrested for DUI, whether alcohol or drugs, then upon release from jail or booking the defendant is given documents that include a notice that you have only ten days to file a request with DMV for a hearing on an appeal of an automatic suspension of your license imposed by DMV. That is separate and runs consecutively with any suspension that may be imposed by the court. Contact DMV and do so, timely, then appear at your scheduled DMV appeal hearing and present any supporting evidence and testimony. If you don't know how to do these things effectively, then hire an attorney that does.
    Answer Applies to: California
    Replied: 3/2/2012
    Salladay Law Office | Lance Salladay
    Yes- the state has to prove you were under the influence, and there are a number of ways that can be done by circumstantial or direct evidence. If you took a breath test and the BAC was below .08 then you are not presumed to be under the influence, but driving pattern, performance on certain "field tests" etc. may provide sufficient evidence to support a charge of DUI. DUI's are very serious and you should get an attorney to assist you.
    Answer Applies to: Idaho
    Replied: 3/2/2012
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    It is possible to be charged for DUI even if you are not drunk. Whether you should have been charged is another story. If the officer believed you were under the influence of alcohol at the time of driving, arrested you for DUI, but failed to offer a breath or blood test, that can certainly be used to your benefit in defending your case.
    Answer Applies to: California
    Replied: 3/2/2012
    Grant & Grant
    Grant & Grant | Richard L. Grant, Esq.
    Based upon the limited facts that you have provided, it appears the correct charge may have been an open container charge. Need to hire a private attorney in attempt to dismiss your DUI charge.
    Answer Applies to: California
    Replied: 3/2/2012
    Law Offices of James A Bates
    Law Offices of James A Bates | James A Bates
    You can be charged with "open container". If they did not take a blood or breath test, then you should not be charged with DUI.
    Answer Applies to: California
    Replied: 3/2/2012
    Raiser & Kenniff, PC
    Raiser & Kenniff, PC | Steve Raiser
    Unless you were drunk you could not be charged with DWI. If it turns out to be a bad arrest you can sue the police.
    Answer Applies to: New York
    Replied: 3/2/2012
    H. Scott Basham, Attorney at Law, P.C. | H. Scott Basham
    While breathalyzer evidence makes the state's case stronger, you can be convicted of DUI in Georgia if it was "less safe" for you to drive. Even without a test, the officer can testify to things such as your car was weaving, you had alcohol on your breath, your eyes were bloodshot, etc. That is enough to support a conviction.
    Answer Applies to: Georgia
    Replied: 3/2/2012
    Anderson Law Office
    Anderson Law Office | Scott L. Anderson
    If you were not asked to test then you cannot be charged with a refusal. You need representation.
    Answer Applies to: Minnesota
    Replied: 3/2/2012
    Ellman and Ellman PC
    Ellman and Ellman PC | Kevin Ellmann
    If that is all the evidence they have against you, the case is very weak.
    Answer Applies to: Colorado
    Replied: 6/20/2013
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Yes, you can. Refusal cases offer an example where the suspect never takes a test. However, a reviewing prosecutor may choose not to file any charges based on a lack of evidence. You may only have 10 days to protect your license.
    Answer Applies to: California
    Replied: 3/1/2012
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    Negligence is a civil law term that has no application in criminal law except for criminal negligence. The officer can charge you if he or she has probable cause to believe you were under the influence of or affected by alcohol or drugs. The real question is can the prosecutor prove you guilty? As a prosecutor, I proved a lot of people guilty without a breath test. The prosecutor can use any evidence of alcohol consumption, field sobriety tests and physiology in proving you were impaired. The arresting officer has no duty to administer the BAC test but your lawyer can certainly point that out to the jury. You must request a DOL hearing ASAP to save your license. The arresting officer should have punched your license and given you the hearing request form. That has to be read carefully and mailed ASAP to keep your license from being suspended.
    Answer Applies to: Washington
    Replied: 3/1/2012
    Germaine & Blaszka, P.A.
    Germaine & Blaszka, P.A. | Donald L. Blaszka, Jr.
    In NH, the standard for DUI is impairment to any degree, not drunk driving. You should speak with an experienced NH DUI attorney to review the facts and circumstances of your case.
    Answer Applies to: New Hampshire
    Replied: 3/1/2012
    The Law Office of Stephanie M. Arrache
    The Law Office of Stephanie M. Arrache | Stephanie Arrache
    He can arrest you on probable cause that you were drunk, arising from things other than a breathalyzer. I am guessing he gave you a BAC test of some sort after the arrest.
    Answer Applies to: California
    Replied: 3/1/2012
    The Law Offices of Harold L. Wallin | Harold L. Wallin
    It does not sound very strong. But keep in mind, the officer may have written a very different version of events in his or her report.
    Answer Applies to: Illinois
    Replied: 3/1/2012
    Law Offices of Scott G. Hilderman
    Law Offices of Scott G. Hilderman | Scott G. Hilderman
    You can be charged with DUI or any other crime any time that the officer has probable cause to believe that you are driving under the influence. The facts you have given me are certainly not enough to charge you let alone convict of DUI.
    Answer Applies to: Montana
    Replied: 3/1/2012
    Michael Maltby, Attorney at Law
    Michael Maltby, Attorney at Law | Michael Maltby
    Unless you were deemed (with evidence) to be under the influence drugs and/or alcohol an officer would be unlikely to charge you with DUI, unless he/she is incompetent.
    Answer Applies to: Washington
    Replied: 3/1/2012
    Glass Defense Firm
    Glass Defense Firm | Jason M. Glass
    Depending upon who the officer is you can frankly be charged with anything. However, whether that charge can pass scrutiny in the court process is a completely different question. Most times, individuals are placed under arrest for a DUI before an evidentiary breath test is even given. The officer merely needs probable cause to arrest someone for a DUI. This is one of the lowest standards in the law. However, in order to gain a conviction, the state must prove its case beyond a reasonable doubt, the highest standard in the law. You should hire a qualified DUI attorney immediately to fight this case for you!
    Answer Applies to: West Virginia
    Replied: 3/1/2012
    Law Office of Neal L. Weinstein
    Law Office of Neal L. Weinstein | Neal L. Weinstein
    Sure he is negligent and yes, you can get the case dismissed. Unfortunately most police who make illegal arrests are never punished for the illegal arrests.
    Answer Applies to: Maine
    Replied: 3/1/2012
    Gutin and Wolverton
    Gutin and Wolverton | Harley Gutin
    Yes. You can always be arrested for something because of a misunderstanding by the arresting officer. However, I don't see under the facts you gave how you could be convicted.
    Answer Applies to: Florida
    Replied: 3/1/2012
    Attorney at Law | Ernest Krause
    Having the open bottle of alcohol is a separate offense from DUI. He can cite you for DUI if you failed field sobriety tests. If the breath analyzer was working and he didn't use it he would have to explain that at trial. If the DA files a case against you look around for legal advice.
    Answer Applies to: California
    Replied: 3/1/2012
    Law Office of Michael Bialys THE DUI MAN
    Law Office of Michael Bialys THE DUI MAN | Michael Bialys
    It sounds like you can be charged with an open container but not a DUI.
    Answer Applies to: California
    Replied: 3/1/2012
    Dowdy Law Office
    Dowdy Law Office | J. Scott Dowdy
    It is illegal to transport any open bottle of alcohol in your vehicle.
    Answer Applies to: Idaho
    Replied: 3/1/2012
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    Since you were charged, obviously yes.
    Answer Applies to: New York
    Replied: 6/19/2013
    Mark Thiessen, Attorney at Law
    Mark Thiessen, Attorney at Law | Mark Thiessen
    The definition of intoxication is: the loss of the normal use of your mental or physical faculties due to intoxication. So you don't have to be drunk. But sounds like a very defendable case. Hire the best DWI attorney that you can afford.
    Answer Applies to: Texas
    Replied: 3/1/2012
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    DUI does not mean drunk, it means under the influence. So, what factors exists, if any, that show you were under the influence. As for the cop not doing a thorough investigation - you just nailed the number one flaw in our criminal system - cop decides he knows everything he needs to know and swears out warrant, you then get arrested and deal with the system. A thorough investigation would be more work for cop (and delay the donut stop by 10-15 minutes) but save you and the tax payer thousands of dollars and countless hours of time.
    Answer Applies to: Texas
    Replied: 3/1/2012
    Ascheman & Smith | Landon Ascheman
    Given the facts, you can challenge the DUI charge. However, there are also charges for having an open bottle. I would suggest you contact a criminal defense attorney to discuss your options.
    Answer Applies to: Minnesota
    Replied: 3/1/2012
    Connell-Savela
    Connell-Savela | Jason Savela
    If they did not allow you to prove you are not drunk, then you have a good motions issue and a good trial issue get a solid DUI attorney to help.
    Answer Applies to: Colorado
    Replied: 3/1/2012
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    I have never heard of the officer arrested a person for DUi with no odor of alcohol coming from the person, and no fiedl sobriety evaluations (because you would have defintely passed) and no breathalyzer. You may have been charged with DUI, but it cannot stand. Conversely, if the officer saw you swerving, and you failed the field sobriety evaluations because you were tired and you refused to take the breath test, you can be arrested for DUI, with no proof that you were consuming the alcohol the officer located in the vehicle. Generally, police are not incompetent.
    Answer Applies to: Georgia
    Replied: 3/1/2012
    Healan Law Offices
    Healan Law Offices | William D. Healan, III
    You are correct, the officer should have asked you to submit to a test if he arrested you for DUI. The officer will probably say that he asked you to take a breath test and you refused.
    Answer Applies to: Georgia
    Replied: 3/1/2012
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    You cannot be convicted of a DWI if you are not asked to take a test to determine your blood alcohol content. And before that can happen, a police officer must have probable cause to believe you have been driving, operating, or have been in physical control of a motor vehicle. Just because there was a bottle of alcohol in the vehicle is not sufficient without more indicia of alcohol use.
    Answer Applies to: Minnesota
    Replied: 3/1/2012
    The Short Law Group, P.C.
    The Short Law Group, P.C. | Shawn Kollie
    Under Oregon law and individual can be cited for DUI if they have a BAC over .08 at the time of driving, OR are 'intoxicated to a noticeable degree'. The officer in this scenario may have believed you were intoxicated to a noticeable degree and thus charged with DUI. An experienced DUI Lawyer may help you to fight this case at trial or help to determine what route may be best. Contact a local DUI Lawyer with the facts of your case.
    Answer Applies to: Oregon
    Replied: 3/1/2012
    Edward A. Kroll, Attorney at Law
    Edward A. Kroll, Attorney at Law | Edward A. Kroll
    It sounds like you have a very good case, especially if no tests were given. The officer can charge you with it, but you have a good chance to win. However, do not assume it is in the bag because the officer was careless. Oregon DUI charges are serious, and you should make sure you have a good attorney on your side. I am happy to discuss your case for free if you are interested.
    Answer Applies to: Oregon
    Replied: 3/1/2012
    Rhoades & Miller, LLP
    Rhoades & Miller, LLP | M. Jason Rhoades
    An officer has no duty to utilize the breathalyzer before making an arrest. There may be other issues that weaken the State's case or other procedures the officer screwed up though. If you want to have a chance of beating the charge, you need an attorney right away who can gather the evidence and fight for your rights.
    Answer Applies to: Georgia
    Replied: 3/1/2012
    Gregory C. Graf
    Gregory C. Graf | Gregory C. Graf
    You can be charged with anything. The real issue is whether you will be convicted. If you were not offered a blood or breath test, you should take the case to trial.
    Answer Applies to: Colorado
    Replied: 3/1/2012
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