would be a 2nd dui
Insufficient facts for me to offer an opinion. Additionally, I am not licensed in SD and would have to defer to the insights of those who are so licensed. In any event, in my home state (PA) the offense requires that the Defendant be in actual physical control of the vehicle. It does not require that the vehicle's engine is running nor does it necessarily require keys to be in the ignition. This particular issue, at least in my jurisdiction, has been much litigated. The substantial case law in this area comes down to a very detailed fact-dependent analysis. I don't recommend that you add to the details already posted. TALK with qualified attorneys in your area rather than exploring it on your own on the Internet.
Criminal Defense Attorney
Yes you can get charged, but whether you will be convicted is an entirely different question. You need to hire an experienced criminal defense attorney in your area to represent you. I don't practice in SD, nor have I seen the SD state law on DUI/DWI, but I assume it requires proof YOU were driving impaired and the car was operating at the time. In my state, KY, a good defense attorney would have a good argument to challenge operation of a vehicle not running with no keys in the ignition. Get an attorney to review and advise who knows SD state law on this issue.
I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..
Can you be charged? Probably. Can you be convicted? It depends on things you aren't saying, things you may not even know. They have to prove that you were driving while you were impaired. They do not have to catch you at it; they need to prove it. You want to get a dui defense lawyer, now.
Often people think that because it isn’t a murder case, a drunk driving case is simple. Nothing could be further from the truth. These cases can be among the most complex a criminal defense lawyer handles. The government is willing to spend an incredible amount of money to convict you though. They will have expert witnesses available for consultation and trial.
That you have been charged or that some contraption says your alcohol level was at a certain level does not mean that you are guilty. It certainly does not mean that you can be proven guilty using competent, valid evidence.
Field sobriety “tests” are designed to give police a reason to arrest. You cannot “pass” them. The police will admit that almost a third of healthy young adults who take these tests without any alcohol will be judged to be “under the influence” – and that assumes they are properly administered!
After even a first drunk driving conviction, you may face employment discrimination. You will certainly be charged higher for insurance. Having such a conviction will also make you a target for drunk driving arrest in future interactions with police. You will automatically become a suspect.
You will want a lawyer who is familiar with field sobriety “tests,” perhaps one who is certified to administer these tests. You will want a lawyer familiar with the weaknesses of the contraptions that are used to report alcohol or drug levels. You want an experienced trial lawyer, used to cross-examining police officers. Police officers are practiced, experienced witnesses.
That is, you want an experienced drunk driving defense lawyer, whether you call the offense DUI, OWI, DWI, OUI, or drugged driving.
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I am an experienced Wisconsin drunk driving (DUI/OWI/DWI) defense lawyer practicing in Madison (Dane County) Wisconsin. The laws in each jurisdiction can be very different. I cannot give legal advice over the Internet nor can I establish an attorney client relationship with you.
If something I say disagrees with what your own lawyer is telling you, you should rely on your lawyer who is familiar with you, your entire case, the local courts and practices.
To deal with a legal problem, nothing is better than to consult with a lawyer who will give you some time and advice. If you cannot afford an attorney, there should be agencies in your area that can provide discounted, or even free, legal services.
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Confidential information should not be disclosed in this Internet forum. Click on the "More..." link for IMPORTANT INFORMATION about this AVVO Answer. . . . . . . . . . . . . . . . . . . . . . . . . . . . I am an experienced Wisconsin lawyer. The laws in each jurisdiction can be very different. I cannot give legal advice over the internet nor can I establish an attorney client relationship with you. You should NOT assume or otherwise conclude that there is an attorney -client relationship between any reader and this writer or his firm. These comments are only guideposts. They are not subject to any privilege protections. Indeed, these internet communications are neither privileged nor confidential. Accordingly, those using this form of communication need to be guarded in what they write. Because of the nature of these communications the information is general only and should not be relied upon in any specific case. This internet site is public forum, where the communications are not confidential or privileged. There may very well be merit to your defense or position in this type of situation. However, there are hardly sufficient details for an attorney to provide you with some path to follow. It is imperative that ALL of the facts in a particular situation be examined. No conclusion can be drawn from the communication that you have provided. There are some matters that are just better handled by an attorney familiar with the procedures of the courts in your area. Most, if not all, legal matters should not be handled via internet communication. At best, the responders on this site can give you a few hints and guidance. To deal with a legal problem, nothing is better than to consult with a lawyer who will give you some time and advice. If you cannot afford an attorney, there should be agencies in your area that can provide discounted, or even free, legal services. For a definitive answer you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. Your question and the attorney’s answer may be used for promotional or educational purposes.