How do I know if my DUI arrest was legal? 44 Answers as of May 27, 2011

My husband was arrested in our own yard for drunk driving. He was not in the car at the time the officer came to the house stated. He had a witness that he was driving he was in the yard 20 minutes before the sheriff came. Is that a legal arrest? I thought dui stand for driving while intoxicated?

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The Law Firm of David Jolly
The Law Firm of David Jolly | David Jolly
Your husband's arrest is suspicious, to say the least. There are too many legal defenses to list but some of them include 1) Corpus Deliciti (did anyone see him drive); 2) Drinking after driving (did he drink after driving?); 3) BAC more than 2 hours after driving. Consult with an attorney now!
Answer Applies to: Washington
Replied: 5/27/2011
The Law Office of Kevin O'Grady
The Law Office of Kevin O'Grady | Kevin O'Grady
If you or someone has been arrested for a DUI you should contact and hire an experienced criminal attorney quickly. There are sometimes short timelines that come into play with regard to a driver's license and other matters related to the criminal justice process. There are a multitude of various defenses and whether or not the state can prove that a person was driving or in control of a vehicle is one area that needs to be examined by your attorney.
Answer Applies to: Hawaii
Replied: 5/19/2011
Law Office of Jonathan T. Sarre
Law Office of Jonathan T. Sarre | Jonathan T. Sarre
DUI does stand for driving while intoxicated and the state must prove that the person arrested was driving and had a blood alcohol content at the time of driving at some level over .08 or that the person was impaired. While it often a much easier case for the state if the person is behind the wheel of the car, the state can still prosecute even if the person wasn't driving when the cops showed up. As you said, there is a witness to claims he was driving 20 minutes before the cops arrived. Now that doesn't mean your husband can't argue that he drank a couple of quick shots or something when he got home and thus was impaired but not while driving. He should find himself a good DUII lawyer who practices in your area.
Answer Applies to: Oregon
Replied: 5/19/2011
Palumbo and Kosofsky
Palumbo and Kosofsky | Michael Palumbo
The arrest was legal. Your husband needs a competent DWI attorney. We can represent him, and can be reached toll free for a no obligation, no cost phone consultation.
Answer Applies to: New York
Replied: 5/18/2011
Lacy Fields, Attorney at Law, LLC
Lacy Fields, Attorney at Law, LLC | Lacy Fields
You may have a strong defense if you have an alibi witness and an argument that he drank after arriving home (or conversely that he drank and immediately drove before the effects set in). Still, the arrest itself is legal if the officers had reason to believe he was drinking and driving. Please don't hesitate to call if you have any questions.
Answer Applies to: Missouri
Replied: 5/17/2011
    Dearbonn Law Offices
    Dearbonn Law Offices | Ajibola Oluyemisi Oladapo
    If he was on his way to your house and was intoxicated while driving it does not matter if he had reached the yard when he was arrested. As long as the officer had evidence of the fact that he was drunk while at the wheel on the way to your house, the arrest is legal.
    Answer Applies to: Washington
    Replied: 5/17/2011
    Harris Law Firm
    Harris Law Firm | Jennifer C. Robins
    DUII in Oregon means driving under the influence of intoxicants. "Driving" means "operating a motor vehicle," which doesn't even require driving. And even if the officers do not themselves observe the driving, they can investigate and arrest someone for DUII. Another requirement for a DUII in Oregon is that the defendant operated a motor vehicle on premises open to the public. There may be an argument that driving in your yard isn't premises open to the public.
    Answer Applies to: Oregon
    Replied: 5/17/2011
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    The law is written for "operating or attempting to operate a motor vehicle while under the influence of drugs, alcohol or both." The officer can make an arrest for DUI on private property and if there is sufficient evidence to believe the person arrested has operated or attempted to operate while under the influence. So, if the evidence supports him operating the vehicle, then the arrest could be legal. The ultimate determination is a matter of law, so the judge or jury will get to answer that issue.
    Answer Applies to: Kansas
    Replied: 5/17/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    In Washington, we follow the two-hour rule. If a person has been seen driving and has a BAC level of .08 grams of alcohol per 210 liters of breath, he or she can be arrested and charged with DUII.
    Answer Applies to: Washington
    Replied: 5/17/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    How do you know? If you win a dismissal motion on that ground. The outcome will be based upon all the facts. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a search or confession be used against you, and can you be convicted, and what can you do? Raise all possible defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments, for evidence suppression or other motions, or at trial. While this isn't a 'capital case', you certainly face potential jail and fines, so handle it right. Effective plea-bargaining, using those defenses, could possibly keep you out of jail, or at least dramatically reduce it. Go to trial if it can't be resolved with motions or a plea bargain. There is no magic wand to wave and make it all disappear. Not exactly a do it yourself project in court for someone who does not know how to effectively represent himself against a professional prosecutor intending to convict and jail you. If you don't know how to do these things effectively, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain, or take it to trial if appropriate. If serious about hiring counsel to help you in this, and if this is in SoCal courts, feel free to contact me. Ill be happy to help use whatever defenses there may be. Keep in mind a little free advice: When you are arrested for DUI, whether alcohol or drugs, then upon release from jail or booking you were given documents that included a notice that you have only ten days to file a request with DMV for a hearing on an appeal of an automatic one-year 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 hearing and present any supporting evidence and testimony. If you don't know how to do these things, then hire an attorney that does. If serious about hiring counsel to help you in this, and if this is in SoCal courts, feel free to contact me.
    Answer Applies to: California
    Replied: 5/17/2011
    Michael Anthony Wing, P.C.
    Michael Anthony Wing, P.C. | Michael Anthony Wing
    You need your lawyer to review those facts. If 20 minutes passed, how does the state prove you husband didn't arrive home sober, and proceed to get smashed, legally, in his own home? It sounds like a winnable case for your husband. Stay well.
    Answer Applies to: Alabama
    Replied: 5/17/2011
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    If someone saw him driving, and he was intoxicated when the officer arrived, he could be arrested for DUI. If no one saw him driving the car (and assuming he did not admit he was the driver) they will not be able to prove the DUI, and he will win at trial.
    Answer Applies to: Washington
    Replied: 5/17/2011
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    To prove DUI they do have to show he was driving or in physical control while under the influence of alcohol. You need to get a lawyer and fight the action.
    Answer Applies to: Nebraska
    Replied: 5/17/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    There seems to be two issues here. First, the arrest. An arrest is based on probable cause. If there was probably cause to believe that your husband was driving and while driving was intoxicated, he could be charged with OWI. The second issue is whether he has a defense to the charge. You are correct, he has to be intoxicated while driving. The fact that he was intoxicated at some later time when not driving does not prove the charge. There are many facts missing here to make a determination as to how good of a defense your husband might have but it is one that should be explored. For further information, contact me.
    Answer Applies to: Michigan
    Replied: 5/17/2011
    Lori C. Obenauf LLC
    Lori C. Obenauf LLC | Lori C. Obenauf
    Your husband should hire an attorney to review all of the facts of his case, conduct an independent investigation, and advise your husband accordingly.
    Answer Applies to: Georgia
    Replied: 5/16/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    According to your summary the police have a witness who can testify at rial that he was driving the vehicle about twenty minutes prior to their speaking with him in your driveway. If he admitted driving or there is a witness who can identify his face then there is probably sufficient evidence to convict at trial. He may be allowed to plead to a violation of Impaired if the DA thinks it was a low test, first offense, with some proof problems. Call for a free consultation anytime.
    Answer Applies to: New York
    Replied: 5/16/2011
    Nichols Law Firm
    Nichols Law Firm | Michael J. Nichols
    If this arrested in Michigan it may very well not be a legal arrest. Please contact an attorney right away. You may contact me.
    Answer Applies to: Michigan
    Replied: 5/16/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    There is some chance the judge would consider that it was an illegal arrest thereby getting the case thrown out. It's not a 50/50 chance but it's possible with a good lawyer the D.A. would reduce or dismiss it. For more info or a fee quote call.
    Answer Applies to: California
    Replied: 5/16/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    The police would have to prove that he was operating the vehicle earlier. It is clear that you need an experienced criminal lawyer to explore the facts about this arrest. Good luck!
    Answer Applies to: Georgia
    Replied: 5/16/2011
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    The officer had an eye witness to your husbands DUI. This gives the officer probable cause to make the arrest. Get an attorney and he should do OK.
    Answer Applies to: California
    Replied: 5/16/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    Yes, it is for driving while intoxicated, but if the police have a witness, even though it's a civilian, it's sufficient to prove the case, as long as they can also prove intoxication. Hire an experienced criminal defense lawyer right away and fight the case. Good luck.
    Answer Applies to: New York
    Replied: 5/16/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    Based on what you've told me, that's a very defensible case. First, just because your husband was arrested doesn't mean he'll be charged. The DA has until his court date to decide whether to issue the case. If they decide that the case is weak, it may not issue. Second, if it does, sounds like you have a great shot at fighting the case unless there is another witness who will testify that your husband was driving drunk. Please feel free to contact our office. If you're going to fight it you need a good attorney.
    Answer Applies to: California
    Replied: 5/16/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    The facts stated would lend themselves to a strong defense. You should consult with experienced legal counsel.
    Answer Applies to: Minnesota
    Replied: 5/16/2011
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    It sounds like there may be an issue as to whether they can prove your husband was driving earlier. You should get the police report + then consult with a lawyer. It would be well worth the time and money. I'd be happy to talk with you.
    Answer Applies to: Colorado
    Replied: 5/16/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    You really need to look at the whole police report and do discovery through an attorney to find out the answer to your questions. We are Arnold & Wadsworth a Utah law firm. We offer free consultations to our potential DUI clients.
    Answer Applies to: Utah
    Replied: 5/16/2011
    Law Offices of Scott G. Hilderman
    Law Offices of Scott G. Hilderman | Scott G. Hilderman
    The prosecution needs to prove that your husband was driving while intoxicated. If they have a witness who can place your husband behind the wheel contemporaneous to the time that your husband was intoxicated they can bring charges. The question is can they prove the two. Moreover, there maybe an issue with the arrest. In most states, a police officer may not make an arrest for a misdemeanor unless it happens in his presence. Therefore, if the officer didn't see your husband driving the arrest may not be good.
    Answer Applies to: Montana
    Replied: 5/16/2011
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    If your husband has a reliable witness who can state under oath that he was not driving the car, he stands a good chance of beating this case once it goes to trial. Usually, an arrest should be effectuated within minutes of an offense. A person can be arrested for DUI if caught behind the steering wheel, keys in ignition and engine running. Understand, if the police witness can positively ID your husband as driving within a few minutes of the police grabbing him in his back yard, you husband is in trouble. Hire a good DUI attorney to follow through with this case, his entire future could be adversely effected if he does not have a good DUI attorney.
    Answer Applies to: Illinois
    Replied: 5/16/2011
    Law Office of Michael Brodsky
    Law Office of Michael Brodsky | Michael Brodsky
    He can be arrested based on the witnesses observations BUT the fact that he was out of the car raises numerous defenses and issues that could result in a reduction or dismissal. You seek the counsel of an experienced DUI attorney.
    Answer Applies to: Washington
    Replied: 5/16/2011
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    Although it is possible to get a DUI under conditions where the officer did not see the actual driving, this does make your case stronger to defend. Sounds like they are relying on a civilian witness who claims to have seen him driving. Further, if there was a time gap between when the witness contacted the police, and the time the police showed up at your house, it's plausible that your husband had consumed drinks after driving, but before the cop showed up, which makes it more difficult for the prosecution to try to prove his blood alcohol content at the time of driving. I have successfully handled similar DUI cases like this in the past. Feel free to contact me through 1duilawyer.com if you would like to discuss the case in further detail. Also, if I am reading your question correctly, you have a witness that states that your husband was not driving at the time the officer claims he was. That is evidence that can be used to impeach the credibility of the officer during cross examination.
    Answer Applies to: California
    Replied: 5/16/2011
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    There are several questions raised by your brief description of events. First, what was said by the witness? Can the witness identify the driver. What driving was observed? When was the driving observed and where? All of these questions are important in evaluating this first observation. Next, there is what was said to the officer. Was driving admitted by your husband? Did he place himself at the place and time where the witness observed him driving? Did he account for what happened in the intervening 20 minutes? Did he admit to no drinking during these 20 minutes? Next, what did your husband say about drinking? Did he admit to drinking before driving? Was he given a breathalyzer test? Did he perform field sobriety tests? Based on these answers, the arrest for OWI may be supported or not. Just as someone can be arrested for bank robbery after the fact, miles away from the bank if there is evidence to support the crime, . . . you husband can be arrested for OWI 20 minutes after the offense, far from where it occurred and after he stopped driving. The real question is whether or not the prosecutor can prove the case. Should you need representation, you may contact me to arrange an appointment to further discuss your case.
    Answer Applies to: Michigan
    Replied: 5/16/2011
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    You need to obtain the police report and have a criminal law specialist analyze it.
    Answer Applies to: California
    Replied: 5/16/2011
    Ron Graham Attorney at Law
    Ron Graham Attorney at Law | Ron Graham
    It sounds like you have some issues but would need to see the police report.
    Answer Applies to: Ohio
    Replied: 5/16/2011
    Edward A. Kroll, Attorney at Law
    Edward A. Kroll, Attorney at Law | Edward A. Kroll
    It is not an illegal arrest, but your husband might have a very strong case for trial. He should get an experienced DUII attorney as soon as possible. Depending on the facts, it may be possible to get certain evidence suppressed, or even if that fails, the case could still be winnable at trial. If you are in Oregon, please feel free to give me a call for a free consultation. I was Portland's former chief DUII prosecutor. Regardless, get a lawyer as soon as possible. It will make fighting this much easier.
    Answer Applies to: Oregon
    Replied: 5/16/2011
    Law Office of Thomas J. Ogas
    Law Office of Thomas J. Ogas | Thomas Ogas
    Sounds like an unlawful arrest. An officer can only arrest someone for a misdemeanor if the crime is committed in their presence. Not based on a witnesses testimony. Find an attorney who's willing to file the appropriate motion. You have a good case there.
    Answer Applies to: California
    Replied: 5/16/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    They will need to have some evidence that he was driving a motor vehicle on a public road while over the legal limit. Your best bet is to have an experienced DUI attorney review the police report. He should be able to tell you if the arrest is valid or if there is any weak sports or errors that may get the charges reduced or dismissed.
    Answer Applies to: Michigan
    Replied: 5/16/2011
    Howard W. Collins, Attorney at Law
    Howard W. Collins, Attorney at Law | Howard W. Collins
    An officer can arrest a person for a crime based upon an eye witness statement. Most crimes are not committed in front of an officer. It is just that we assume all traffic crimes must be seen by an officer, which is not true. The DUI statute encompasses driving a motor vehicle on premises open to the public. So this case sounds like it has more to do with where the driving took place versus whether or not any driving took place. I would need to know more before I could answer you with more certainty. It sounds like you may have a defense to this DUII charge; not necessarily the arrest; but a defense to the charge of DUII. I have practiced criminal law for over 29 years, so you may want to call me.
    Answer Applies to: Oregon
    Replied: 5/16/2011
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    As long as the officer has reliable info that your husband was driving, it is a lawful arrest. So, the question for you now is do you intend to retain an attorney to fight the case. Because if he intends to plead guilty, you don't need to ask if it is a lawful arrest. See my website.
    Answer Applies to: Georgia
    Replied: 5/16/2011
    Attorneys of Michigan, PLLC
    Attorneys of Michigan, PLLC | Daniel Hajji
    The Prosecutor may have a hard time proving the necessary element of 'operating'. In order to be convicted of drunk driving in MI, the government (Prosecutor/City Attorney) must prove each of the following elements *beyond a reasonable doubt*: 1. You were Operating a motor vehicle; 2. On a highway or other place open to the general public, or generally accessible to motor vehicles; 3. Venue; (example, the name of the County such as Macomb, Oakland, Wayne, Monroe, Washtenaw, Livingston, etc; as well as the City or Township, such as Troy, Warren, Detroit, Canton, Bloomfield, Novi, Waterford, Shelby, Sterling Heights, Royal Oak, Berkley, Southfield, White Lake, Romulus, Canton, etc.; 4. And, while under the influence of alcohol, and/or with an unlawful bodily alcohol level .08 grams or more. Almost every DUI charge can be defended in some manner. This is not to say that all DUI defenses lead to a dismissal or even a substantial reduction in the charges, nor does it mean that every DUI charge can be fought and won. However, you ought to explore the opportunity to make an informed decision through the advice of an experienced and knowledgeable DUI lawyer. A DUI is not longer a minor offense, especially after October 31, 2010. Therefore, it is essential for you to hire the Best DUI lawyer you can afford so your case is as strong as possible.
    Answer Applies to: Michigan
    Replied: 5/16/2011
    Jules N. Fiani, Attorney at Law
    Jules N. Fiani, Attorney at Law | Jules Fiani
    Yes it was a legal arrest because there was a witness that proves he was driving and that can place him behind the wheel of the vehicle and that he was intoxicated at the time that he had been driving. I still recommend hiring a lawyer for your case. Visit my website for more information.
    Answer Applies to: Michigan
    Replied: 5/16/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Now that the arrest has occurred, charges will likely follow. It is up to him to get a competent DUI lawyer to show the prosecutor that he wasn't driving. At this point the arrest report is probably using circumstantial evidence to show that your husband must have been driving close in time to the time of the arrest.
    Answer Applies to: California
    Replied: 5/16/2011
    Law Office of Andrew Roberts
    Law Office of Andrew Roberts | Andrew Stephen Roberts
    Your husband needs an attorney. There are many issues that have to be dealt with which could possibly benefit your husband's case.
    Answer Applies to: California
    Replied: 5/16/2011
    Law Office of James E. Smith
    Law Office of James E. Smith | James Smith
    Probable cause is based on the witness identifying your husband driving weird. Arrest after 20 minutes home is not unusual if there's probable cause.
    Answer Applies to: Nevada
    Replied: 5/16/2011
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