There is no law making a passenger guilty of driving when someone else is clearly in control of the vehicle. It is likely the officer will testify he saw you switching seats, or saw your husband drive at some point.
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It sounds like there are some more facts the officer is going from than what is posted, because there is not a DUII based on the facts above. The State must prove your husband was "driving" to prove a DUII case. That element is not met on the above facts. However, if he was sitting on your lap while the vehicle was being operated on a "highway" or vise versa, there is a case that states he was driving for the purposes of DUII. The little details in DUII cases are what the DA is going to attempt to use to show your husband was the driver.
I suspect the officer: 1) received a tip from someone at the bar or another motorist that your husband was driving under the influence, or 2) thought he saw your husband driving prior to initiating the stop, or 3) the officer for whatever reason decided to arrest your husband based on some theory that most likely won't stand up in court. It could be a combination of all three. Whatever the case, it sounds like your husband may have a "no driving" defense.
This is why it is imperative to consult with an attorney after a DUII arrest. The State might not be able to prove their case, so even if your husband is diversion eligible that might not be the best option for him.
Additionally, remember he can fight to prevent a suspension of his driver's license by challenging the DMV Implied consent suspension. He must act quickly though and send in a request for a hearing within 10 days following the arrest. The DMV hearing will provide you valuable insight on why your husband was arrested. However, an attorney should be consulted prior to your husband attending the hearing.
Additionally, from the facts provided it appears your husband did not have a right to take a blood test in lieu of a breath test for DUII purposes. There was no hospitalization or traffic accident. Therefore a breath test was the option. The refusal to take a breath test and asking for a blood test instead can also be construed as a refusal. This may have additional negative consequences for your husband.
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In short, the state must prove driving to convict someone of a DUI.
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