If I am driving while under the influence of alcohol and I subsequently cause property damage (not to another car but to another structure), and there are no witnesses, is my best bet to step out of the car, sit outside the passenger door and say nothing to anyone until I speak with an attorney? If the state cannot prove that I was in control of the vehicle at the time of the crash, can they still convict me of DUI/property damage? Could I still be held civilly liable?
Note: I am not trying to get away with DUI, and have no plans of driving while intoxicated in the future. I understand all of the dangers associated with DUI. I am merely seeking an expert opinion, not legal advice.
First, never drive under the influence.
Being outside the vehicle with the keys removed would make it more difficult for the police to prove that you were driving or in actual physical control of the vehicle. Do not speak to the police or anyone about the accident. Ask to speak to an attorney. If the state cannot prove that you were driving on in actual physical control of the vehicle it will make it VERY difficult for them to charge you with DUI.
Call me if you have any questions
Larry McmMillan 305-444-0030
Look at questions on this site and others that deal with "actual physical control". While in the theoretical scenario you describe it would be hard to prove that you were driving the vehicle, it would be easier to prove that you were in actual physical control. And the case law is very bad for defendants in that regard.
Also, something to keep in mind is that when one is under the influence of alcohol it is very hard to remember to do all of these things: step outside the car, say nothing to anyone, etc. One tends to forget their well-laid plans and do something stupid when one drinks. Like drive. And then admit to doing so to the first person they see, like a police officer.
Don't drink and drive and you won't have to worry about it. The burden is on the state to prove that you were in actual physical control. This can be proven by circumstantial evidence. Assuming you don't take the stand and lie you could be convicted in a situation such as the scenario you posted. Obviously a defense attorney would attack the evidence but its not a guaranteed dismissal.
Here's your duty under Florida statute.
316.063 Duty upon damaging unattended vehicle or other property.—
(1) The driver of any vehicle which collides with, or is involved in a crash with, any vehicle or other property which is unattended, resulting in any damage to such other vehicle or property, shall immediately stop and shall then and there either locate and notify the operator or owner of the vehicle or other property of the driver’s name and address and the registration number of the vehicle he or she is driving, or shall attach securely in a conspicuous place in or on the vehicle or other property a written notice giving the driver’s name and address and the registration number of the vehicle he or she is driving, and shall without unnecessary delay notify the nearest office of a duly authorized police authority. Any person who fails to comply with this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
They have to prove that you were the driver but being outside the vehicle makes it more difficult.
This is one tough question. If you are near the car, and particularly if it is your car, that might be enough circumstantial evidence to convict. In many states they have to prove they got your blood within so many hours of when you last drove so by not talking they may have a hard time proving when you last drove i.e. the time of the accident. As for being civilly liable, somehow I can see them bringing you to a deposition even if they have to sue John or Jane Doe to get the case started until they identify the driver. You could probably take the fifth amendment privilege at such but obviously at that point, you should get a lawyer. These situations are always problematic. I get calls all the time from people who left the scene of the accident. Not the same thing but that is a very difficult situation for a lawyer. Some might disagree.
They do not have to catch you driving or in the driver's seat. They have to prove that you were driving. This can be done with circumstantial evidence and often is.
The best expert opinion I can render is that you do not want to be driving under the influence or over the legal BAC limit. Period. You can get a portable breath test machine from Amazon.com for less than $50. If you are going to drive after drinking, you owe it to yourself and the rest of us to get one, use it, and pay attention to the results.