Can an officer issue a dui when your car is already parked keys out of ignition and me out of the car?

It all depends upon what the exact "probable cause" or reason the PO had for pulling you over in the first place. Regardless of whether you saw him in your mirror, he apparently claims he saw you do something incorrectly or wrong. That will be the primary issue that must be resolved by a Court at a pre-trail hearing. If the Court finds that he didn't see you driving and that he made up his rathionale for "stopping" you, then the case will more than likely be thrown out.

However, don't get your hopes up yet. That rarely happens, because the cop gives an acceptable answer to the Judge and they hold the case for trial.

If you were out of the car and you were in the vicinity of the car and the cop saw you walking from the car or there is evidence to show that you had recenlty been driving the car ( a good example is finding someone walking a hundred yards away from an auto accident and the car actually belongs to that person) then, the judge would probably hold the case in and the jury could find you guilty based upon "operation" of the vehicle being proven to them beyond a reasonable doubt. The case doesn't have to be proven beyond ALL doubt, just reasonable doubt.

Good luck.

In order for you to be "stopped" by the police the officer must have reasonable suspicion that a law has been violated (even a traffic law violation is OK). Once he has stopped you he must have probable cause to believe that a crime has been committed in order to arrest you. Your posting doesn't say what kind of traffic violation or other information the officer had (a complaint from someone can sometimes be used to justify stopping you). In order to convict you of DWI the DA's office will have to prove, beyond a reasonable doubt, that you were driving the vehicle or intended to drive the vehicle or had been driving the vehicle while intoxicated.

If either the stop/investigation by the officer was unconstitutional the evidence from the breath test may be suppressed by a court. If the officer did not have probable cause to arrest you the evidence of the breath test may be suppressed by a court (not permitted to be introduced into evidence against you at trial).

You should contact a DWI attorney to insure that your rights are protected. If this occurred in Orange County, NY you should be aware of the basic policies that the DA's office has towards DWI charges. You can call my office @ 845-294-0585 if you wish a free consultation.

I think I have grounds for the case to be dismissed.