Charged With DUI When I Wasn’t Driving

D

DaveRK

Guest
This past weekend I decided to go get a few drinks. I planned to only have ~2. Unfortunately, 2 turned into about 4-5 over the course of a few hours. Anyway, I believed I was okay to drive as I drank some water and waited a hour before driving. I drove for approximately 2 miles before realizing I was not okay to drive. So I pulled into a gas station parked my car and walked home which is about 2 miles from my place. As I was walking home, an officer pulled up and stated there were “witnesses” at the gas station whom called and reported me swerving and believed I was under the influence I refused to answer any questions about that night, if I was driving and I refused a breathalyzer both at the scene and at the station. I also did not comply with any of their roadside tests. Ultimately I was placed under arrested and charged with a DUI with a refusal. Now I’m reading a refusal is seen as a 0.15.

I’m going to try and get this dismissed but since my license has been suspended ,I’m going to have to report it. My question is will the hammer come down on a situation like this?

1st arrest. I’m 22 and just obtained my CPL.
 
I mean you did the right thing in realizing that you werent ok to drive and choosing to walk home. But to say "wasnt driving" would be a big stretch wouldnt it ? I mean you were driving and drove to the gas station and there were "witnesses" to that. If you're arguing over a legal reason that you shouldnt have been charged - thats different - but the reality is/was that you were driving under the influence - just not when you were actually apprehended.

this is no different than those stops they make after you have exited the vehicle and test. You are just differentiating that you werent caught in the exact moment, not that the actual event didnt happen.
 
Not an expert and not condoning what you did by any stretch, but dollars to doughnuts any decent lawyer can get this dropped. However, it won't be a cheap lesson at the end of the day.
 
A smart shyster might be able to make the case that it can't be proved that you weren't drinking until after you parked the car, but with witnesses saying you were swerving it's gonna be a stretch. You might have had a better case if you had a liquor bottle in your hand when the cops found you.

Regardless, you drove drunk, and now you're gonna have to pay the price. You've lost your pilot certificate, and getting it back likely means you can never drink again.
 
Anthem said:
I mean you did the right thing in realizing that you werent ok to drive and choosing to walk home. But to say "wasnt driving" would be a big stretch wouldnt it ? I mean you were driving and drove to the gas station and there were "witnesses" to that. If you're arguing over a legal reason that you shouldnt have been charged - thats different - but the reality is/was that you were driving under the influence - just not when you were actually apprehended.

this is no different than those stops they make after you have exited the vehicle and test. You are just differentiating that you werent caught in the exact moment, not that the actual event didnt happen.
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This. No one is ever driving at the moment they are charged with DUI, but they're always charged with DUI for the time when they were driving. As far as the legal outcome of this case, likely unless the witnesses are willing to testify, a lawyer may be able to get the charges dropped. Unless you did something stupid like admit that you had been driving. Make that something else stupid. The whole thing was stupid. The only smart thing, was deciding to quit driving, but that was preceded and followed by a whole bunch of stupidity. If you were under 0.15, not testing was stupid because the FAA is going to treat it as though you were .15. And yes, regardless of the ultimate outcome of the charges, you will have to report the license suspension and arrest. And frankly that doesn't seem unjust in this case, since you were DUI.

You should get the charges resolved ASAP, and talk to a HIMS AME. If you want to maintain a medical, the hammer is going to come down.
 
Lindberg said:
...because the FAA is going to treat it as though you were .15.
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:yeahthat:

And I think that means they will see it as dependence and require lifelong abstinence.

Dana said:
A smart shyster might be able to make the case that it can't be proved that you weren't drinking until after you parked the car, but with witnesses saying you were swerving it's gonna be a stretch.
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There may also be video recordings.

The time element will be important. If the cops arrived 10 minutes after he parked, there wouldn’t be enough time to go from sober to 0.15.
 
Half Fast said:
The time element will be important. If the cops arrived 10 minutes after he parked, there wouldn’t be enough time to go from sober to 0.15.
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The prosecutor doesn't have to prove that he was .15, they only have to prove that he was "intoxicated." Since there was no FST, and no blood/breath result, that will be based on the officers' observations. But they do also have to prove that he was driving while in that state. If he admitted that he'd parked his car 10 minutes earlier, that's probably sufficient. If they have admissible witness statements to that effect that's probably sufficient. It certainly not as good a case for the prosecutor as if the cops had actually pulled him over, which is why he may be able to get it dismissed, pleaded down, etc. But we know that helps him naught with the FAA.
 
Since the license has been suspended and the OP stated he will notifying the FAA, from an FAA perspective, I think the question is will the FAA suspend or revoke a valid medical certificate as a result of the notification of an alcoholo-related suspension?

Next, if there’s a conviction for an alcohol related event also require notification at the time the conviction occurs? What’s the impact to the medical?

Finally, there’s the next medical application. That’ll likely need reporting for each of the above, which will likely end up under Condition C of the AME disposition.

 
DaveRK said:
Anyway, I believed I was okay to drive as I drank some water and waited a hour before driving.
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Just about the first thing you lose as you drink is the ability to recognize the fact that you're drunk.

It's funny that we'll readily accept the lessons of thousands of years of collected knowledge of mathematics and medicine, but nobody wants to believe that decision making under the influence of alcohol is s***.
 
Lindberg said:
But they do also have to prove that he was driving while in that state. If he admitted that he'd parked his car 10 minutes earlier, that's probably sufficient. If they have admissible witness statements to that effect that's probably sufficient.
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Agreed. And I'd be surprised if the convenience store didn't have a camera that records video of the parking lot and if so there's likely a time stamp. Also, someone at the store obviously called the cops, and there will be a recording and time associated with that call.

IMHO, any argument that he was sober while driving but got drunk after parking the car isn't going to hold water.

And as far as the FAA goes, it won't matter anyway. He's facing the whole HIMS regime, AA attendance, random testing, etc., etc.
 
Half Fast said:
Agreed. And I'd be surprised if the convenience store didn't have a camera that records video of the parking lot and if so there's likely a time stamp. Also, someone at the store obviously called the cops, and there will be a recording and time associated with that call.

IMHO, any argument that he was sober while driving but got drunk after parking the car isn't going to hold water.

And as far as the FAA goes, it won't matter anyway. He's facing the whole HIMS regime, AA attendance, random testing, etc., etc.
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Indeed. And I've parked my car and walked away many, many times, without anyone calling the police even once. So while we'll never know, my curiosity is piqued as to the OP's behavior that caused such alarm among the witnesses.
 
DaleB said:
Just about the first thing you lose as you drink is the ability to recognize the fact that you're drunk.
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I'm sure it's been studied scientifically, but in my anecdotal experience someone who's moderately drunk is more likely to recognize it than someone who's very drunk.
 
When I read these weekly posts about alcohol and driving problems I am reminded that the best thing I did for myself was to quit. It's a huge relief to not having that worry at every outside meal or event.
I'm flying for people now who might only give a few hours notice, that was the main reason.
 
It just irritates me that police would harass somebody that was clearly trying to do the right thing and basically destroy their life over it.

It's one reason I don't even drink occasionally anymore when I'll be driving. I didn't usually have more than one drink anyway, but even that's not worth the risk these days. It's easy for me though as I don't really enjoy drinking or being drunk. I can make an ass of myself while perfectly sober, thank you.
 
Half Fast said:
And as far as the FAA goes, it won't matter anyway. He's facing the whole HIMS regime, AA attendance, random testing, etc., etc.
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Can't go back and undo a stupid mistake. Move forward and take the lumps and the lessons that comes with it. Determine today that alcohol will no longer be a part of your life ...
 
Salty said:
It just irritates me that police would harass somebody that was clearly trying to do the right thing and basically destroy their life over it.
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If the impairment was significant enough that witnesses' (plural) called law enforcement they would be remiss in their duties to not at least investigate. Better to have the OP greatly inconvenienced versus innocent motorists possibly killed or maimed in the future. Yes, the driver did recognize his impairment and parked the car but did commit the crime in question. This arrest could be saving the OP's life and the life of others. Both sides of the coin should be viewed IMO.
 
I don't do criminal law, but this is really fascinating from a legal perspective. A few "issue spotting" exercises:

1) How far does the implied consent law regarding submitting to alcohol breath/blood tests reach? OP wasn't really engaged in a traffic stop. He was walking, and the officer did not witness him driving. At that point, was OP bound by the implied consent laws and was he actually obligated to give a blood or breath sample or risk losing his driver's license?
2) If he was not obligated to submit to a test under the implied consent laws, and is not convicted, can the FAA do anything about it? Everything in 61.15 relates to convictions or license suspensions; so if the state can't revoke his license for the refusal (if implied consent doesn't apply here), and he isn't convicted, what, if anything, can the FAA do?
3) Is there video or actual competent witnesses who saw him driving and are willing to testify? I can't imagine eyewitness testimony, in this instance, would be totally dispositive. Eyewitness testimony isn't always very reliable, and isn't typically that hard to at least poke holes in given people's frequently faulty memories.
 
tsts4 said:
Not an expert and not condoning what you did by any stretch, but dollars to doughnuts any decent lawyer can get this dropped. However, it won't be a cheap lesson at the end of the day.
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Maybe in 1980. More difficult in the zero tolerance world we live in now depending on the state of the evidence. And dropping or reducing the charges won't have much effect on what the FAA does.
 
Lindberg said:
Indeed. And I've parked my car and walked away many, many times, without anyone calling the police even once. So while we'll never know, my curiosity is piqued as to the OP's behavior that caused such alarm among the witnesses.
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I agree, I'd be interested to know what prompted them to call.

Was the driver was weaving so badly that he was clearly a danger to himself even walking, or causing property damage, running over curbs, etc., or did something else between parking the car and walking? Because I'd bet in most cases if someone just parked a car and got out and walked, most people wouldn't bother even noticing, let alone call the cops and report which way the driver headed on foot.
 
DaveRK said:
This past weekend I decided to go get a few drinks. I planned to only have ~2. Unfortunately, 2 turned into about 4-5 over the course of a few hours. Anyway, I believed I was okay to drive as I drank some water and waited a hour before driving. I drove for approximately 2 miles before realizing I was not okay to drive. So I pulled into a gas station parked my car and walked home which is about 2 miles from my place. As I was walking home, an officer pulled up and stated there were “witnesses” at the gas station whom called and reported me swerving and believed I was under the influence I refused to answer any questions about that night, if I was driving and I refused a breathalyzer both at the scene and at the station. I also did not comply with any of their roadside tests. Ultimately I was placed under arrested and charged with a DUI with a refusal. Now I’m reading a refusal is seen as a 0.15.

I’m going to try and get this dismissed but since my license has been suspended ,I’m going to have to report it. My question is will the hammer come down on a situation like this?

1st arrest. I’m 22 and just obtained my CPL.
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You've seen the comments about what is likely when you report this on the medical end. But just in case, don't forget your reporting requirements under 61.15 which have nothing to do with the medical application.
 
One very important point: even though the arresting officer may have retained possession of your physical license, the suspension is an administrative process. In most states you have a certain number of days to request an administrative hearing to challenge the suspension, and if you don't do so, the suspension goes into effect (triggering the required report to the FAA and whatever consequences come of that).

If you do request the hearing within the allotted time, the license is not legally suspended (and thus nothing is reportable to the FAA) until the hearing takes place, which could be a month or more out. The hearing is normally a rubber-stamp affair that does not afford the same rights as the actual trial (which will come much, much later). But this case has some unique facts. How does "implied consent" work in your state if by all accounts the defendant was not driving at the time consent was requested? Was the arrest even lawful? (In many states, police can't arrest for misdemeanors they didn't witness without a warrant.)

Step 1 is immediately retaining a DUI attorney in your state who can file the request for the administrative hearing in a timely fashion. He or she can't help you with the FAA, but if you can win the administrative hearing and avoid the suspension, and also eventually have the criminal charge dismissed (or pled down to a charge not involving alcohol), you will have nothing to report to the FAA.
 
midlifeflyer said:
Maybe in 1980. More difficult in the zero tolerance world we live in now depending on the state of the evidence.
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I suspect it really depends on the circumstances and the jurisdiction. Not proud of this, but my son was pulled over for DUI in SC last year and his lawyer got it reduced to reckless driving.
 
Half Fast said:
I get your point, but the “right thing” would have been not to have driven drunk for two miles.
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I agree, of course, but I believe credit is due if someone uses new data to make the right decision. He made the wrong decision, got more data, and corrected his mistake. This kind of behavior should be rewarded not punished.
 
RussR said:
I agree, I'd be interested to know what prompted them to call.

Was the driver was weaving so badly that he was clearly a danger to himself even walking, or causing property damage, running over curbs, etc., or did something else between parking the car and walking? Because I'd bet in most cases if someone just parked a car and got out and walked, most people wouldn't bother even noticing, let alone call the cops and report which way the driver headed on foot.
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Cops spew crap all the time. The station owner/attendant probably called to complain about the car being left. I would not be surprised at all to learn the rest was made up.
 
What is the statute of limitations on driving after having too much to drink.??

Is all it takes is someone saying I once saw that person driving and then I later on someone else say I saw that person drunk to be held for DUI.??

Do I have to worry about that one time for me 44 years ago when I drove that 1973 Buick Electra 225 after drinking a couple cans of Billy Beer.?? (askin' for a friend)
 
The police officer may have followed him for a while, as he walked down the street, and personally determined that he was staggering drunk.

Video from the gas station documented him climbing out of his car, and staggering away, after several attempts to suitably park would connect him to his car.

This is the first time that I have heard of drinking water to flush out the alcohol, coffee is the typical choice, and is mostly ineffective, except in the mind of the drunk.
 
Another data point would be where and how he parked his car.

If he stopped in the middle of the road and got out and started walking, some assumptions would be made. Or parked crossways to the lot markings.
 
I’m more concerned about why you cannot drive without the public complaining after having 4-5 drinks over a few hours. It’s probably just over the limit if at it, depending upon your body size.

Anyway the situation sucks, keep mouth shut, hire lawyer. End of story.

If it’s the weekend or a holiday, especially don’t risk driving. I took a $12 Uber the other day and left my car. Was a good decision.
 
You don't get a free pass that you got home, got parked, or threw the keys out the window or whatever. If the state can show you were intoxicated and you had been driving, then that is sufficient to convict. Depending on the state (if it was stated I missed it), the refusal can be used against you as well. The ohter myth is that there is a "legal limit." The so-called legal limit is actually the per se level. If you are found to have 0.08% BAC, you are assumed to be intoxicated without any actual evidence of impairment. I've been in court when DUI cases without a chemical test were prosecuted.
 
StraightnLevel said:
There's a lot of speculation in this thread. Some of it is eye-opening....
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Welcome to PoA.

StraightnLevel said:
That being said, having 4-5 drinks over a few hours (as reported in the OP) isn't going to go away in an hour, no matter how much water you drink. The general rule of thumb that I have always heard is 1 hour to metabolize one American standard shot/mixed drink/beer/glass of wine. Given that most people [conveniently?] forget how many drinks they have actually had over the course of a session, it's reasonable to assume that the OP was at a minimum a couple of hours away from being sober enough to drive legally (maybe more to drive safely).
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Remember also that it's entirely possible to accurately write "4-5 drinks" and legitimately not be aware that could mean anywhere from 4-5 units of alcohol (e.g. weak cocktails or low strength beers) to 15-20 units of alcohol (e.g. premium margaritas or some winter stouts).
 
flyingron said:
You don't get a free pass that you got home, got parked, or threw the keys out the window or whatever. If the state can show you were intoxicated and you had been driving, then that is sufficient to convict. Depending on the state (if it was stated I missed it), the refusal can be used against you as well. The ohter myth is that there is a "legal limit." The so-called legal limit is actually the per se level. If you are found to have 0.08% BAC, you are assumed to be intoxicated without any actual evidence of impairment. I've been in court when DUI cases without a chemical test were prosecuted.
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I'm not offering judgment either way on what OP did, but I find the legal side of this fascinating as it varies from the "normal" DUI case.

In any event, let's be clear/accurate - if the state can show, beyond a reasonable doubt, that he was intoxicated...

Without an officer witnessing him driving and pulling him over in the act, that's not going to be as easy as it would be in a normal "traffic stop" situation where the officer can testify (or provide dashcam/bodycam video regarding) his actions. Not necessarily impossible to convict here, but not a typical open-and-shut DUI case where there's a pile of solid evidence.
 
172andyou said:
Remember also that it's entirely possible to accurately write "4-5 drinks" and legitimately not be aware that could mean anywhere from 4-5 units of alcohol (e.g. weak cocktails or low strength beers) to 15-20 units of alcohol (e.g. premium margaritas or some winter stouts).
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Indeed. Drink four of my cocktails and you likely won't be able to walk.
 
Before we fly we file a plan, and it gets reviewed. Before we hit the taxiway we better have a plan...and contingency plans. Else there can be serious Consequences.

Makes sense; while Using (anything), damage and Consequence are a hell of a lot more risky than those encountered in flying a/c.

Everyone gets grounded at some point in life. It ain't permanent. Just learn and invest a little more effort. And there's plenty of folks around with experience to help out. In my experience, this kind of thing has been a huge plus -- once it's far enough behind me.
 
172andyou said:
Welcome to PoA.


Remember also that it's entirely possible to accurately write "4-5 drinks" and legitimately not be aware that could mean anywhere from 4-5 units of alcohol (e.g. weak cocktails or low strength beers) to 15-20 units of alcohol (e.g. premium margaritas or some winter stouts).
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Yes, there is a big difference between five "3.2" beers and five "10%" beers.

Like this one made about 2 miles from my house:

1704751006526.png
 
bradg33 said:
I'm not offering judgment either way on what OP did, but I find the legal side of this fascinating as it varies from the "normal" DUI case.

In any event, let's be clear/accurate - if the state can show, beyond a reasonable doubt, that he was intoxicated...

Without an officer witnessing him driving and pulling him over in the act, that's not going to be as easy as it would be in a normal "traffic stop" situation where the officer can testify (or provide dashcam/bodycam video regarding) his actions. Not necessarily impossible to convict here, but not a typical open-and-shut DUI case where there's a pile of solid evidence.
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He doesn't have to have seen it. But in this case, there isn't much of a case without it. The FSTs (which everybody thinks they pass) is often used to provide this evidence (it also, in some states, provide the probable cause for the arrest and compelled chemical test).
 
I know a guy who drove drunk, parked at a friends home, got out, was in the house and got a DUI because the cop had footage of him driving drunk.
 
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