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Hey guys, Anthony Bandiero Here, attorney, Senior Legal instructor for blue to gold law enforcement training, bringing the roadside chat from a cop. In Utah, the cop asked me something that's actually a base in statutory law, but has a search and seizure component. The officer says, Can you arrest someone for DUI? If you did not see them in actual physical control of the vehicle? Alright. 
So the answer is it depends on your state law, because DUI statutes come in two flavors, what are both? What are they have both. One is that the statute requires that the person be driving at the time of contact, or, and or they be in actual physical control, which is where you can prove circumstantially that they were driving the vehicle previously. Now, most states in my experience, allow both right? You the person's driving, right? Which obviously, implies that they're an actual physical 12 That time, or you can also prove circumstantially that they were driving the vehicle in the past that is most common with accidents, right? You show up on an accident scene, and the person's not in the vehicle? How do you prove that they drove? They're intoxicated. That's circumstantial evidence. You can also have direct evidence by them making admissions and so forth, but usually gonna have to have something more than just the admission that they drove the vehicle. So let me give you the the hypo or the hypothetical here, right. So the officer gets a report of an erratic driver. Apparently, many phone many calls on this. He was also reported be all over the roadway. He had traffic cones, he ran people off the roadway, we're looking at a possible DUI. They have the plate, they run it, and they find the vehicle is parked at the residence unoccupied. 10 minutes later, they knock on the door. The driver says, Yeah, I came from that area, right. He makes admissions that he was in the area of where the traffic cones and people ran up the road. But he tells the cops that he drank alcohol since then at home. Now the officer saying in his training experience, there's no way he could have got that intoxicated within the 10 minutes, meaning most people don't drink that heavily within the last 10 minutes, and so forth. Now, the question ultimate question again is, can we arrest this person? Even though we did not see him behind the wheel base for DUI? Well, the answer in Utah never get a state specific. But I did look up this case, the answer in Utah is yes. Because you have a case called State vs Knopfler. It's the citation is 563 P dot 2d. That stands for Pacific reporter. It's where the case is. P dot 2d 175 a case in 1977. So basically, what happened here is officers in Utah arrived on scene to a rollover crash, three injuries, one is seriously injured. The defendant who becomes you know, who's our driver? He does admit that he did drove he's also highly intoxicated, you know, consistent with DUI, and some other things. I think vehicles also registered his name. So a lot of circumstantial evidence that he is the driver. Well, he says you can't convict me for DUI, because you didn't see me driving. Right. And the court dismissed that right. So the idea here is that there was sufficient evidence, independent of the defendant's admission of having been the driver, to support a conviction of driving under the influence. So the answer to the author's question, in the sense of directly, is can you convict, you know, in arrest somebody and get a conviction, ultimately, right? Even though he's not seeing him driving? The answer is yes. But now let's turn to specific hypothetical here. We do have a problem. Right? The problem is that he did make it home, and he's telling you that he drank in the meantime. So even if the officer has probable cause to arrest, let's say the guy comes out and talks to you. And so even if you have probable cause to arrest, I just don't see it going anywhere. Because even though in your training experience, the person, you know, would likely not be that intoxicated within 10 minutes.
That's not going to be beyond a reasonable doubt. I mean, you can't go up to court and say, with any certainty, Your Honor, there is no way there's no way that this person could have been could have gotten intoxicated. This intoxicated between the time of the calls and the time that I rest and just you can't say that because you just don't know if he's With a fifth of bourbon in the last 10 minutes, you just don't know that. So, if it was me, if it was me, just the way I do business, I would not make the arrest. Because I just don't have a way beyond that, you know, even even if I made the arrest, and even though it may be based off probable cause, I'm not saying the recipe are lawful. But the investigation at this point is not going to go anywhere. I mean, I'm not going to write a warrant for his house to go see if there's evidence that he's been drinking recently. I'm just not going to do that. So I'm making the arrest with the knowledge that this thing is going to be dismissed, most likely. Now, if there's other things going on, like he ran someone off the road and killed somebody, maybe I do, make the arrest and see if there's, you know, some kind of other way that the DA will take the take this case, I don't know. But the point is, is, you know, based off of these facts alone. Unfortunately, it looks like he's going to probably win as the UI charge. Now, maybe you also have reckless, right? If you have witnesses that are willing to come forward and sign the complaint based off of your state law, it happened in their presence and so forth. Maybe you can get them for reckless; maybe you will win that conviction. If these people show up to court and testify that he was, you know, he ran off the road and so forth. I mean, he did admit the driving, he did admit to being the area, the vehicle is there, so that one could be probably winnable, but the DUI is severely problematic in my book. If you have any different opinion on this or you have other experiences, why don't you share it with your fellow officers and let them know what your experience has been? Or what whether or not you agree with me, and if you don't agree with me, we're still friends. Don't worry about it. There are multiple ways to skin this cat and I'm just telling you the way I would do business, alright. Alright, that's what I have for you guys. Let me say before you leave, hit the like button, comment and subscribe share with your friends, please. I mean that let's let's blow up this channel and get more cops. You know, get into this legal education. Alright, until next time, my friend, stay safe and keep doing that great job out there.