Good question! That happens more than expected and is sometimes associated with the State's ability (or inability) to make a "prima facie" case. Operation of a motor vehicle is what is commonly referred to as an essential element of any DWI DUI Impaired Driving case.
Put simply, they're complicated and sometimes involve a "Trexler" issue, associated with North Carolina v. Trexler.
Given all the different possible fact scenarios, it makes sense to consult with an experienced attorney with substantial experience handling such cases.
Again, great question! Best of luck,
NOTE: Although a response is provided to the specific question, there may be other facts and law relevant to the issue. The questioner should not base any decision on the answer and is specifically advised no client-lawyer relationship has been established. Put simply, seek the advice of competent counsel without delay to discuss the particular aspects of the case, factual scenario and historical background. NOTE: There may be other facts and law relevant to the issue. Readers should not base any decision on the;information provided herein and are specifically advised no client-lawyer relationship has been established. Put simply, seek the advice of competent counsel without delay to discuss the particular aspects of the case, factual scenario and historical background WHY: The content herein is provided for educational purposes and should not be inferred as applying only to DWI / DUI criminal defense. In fact, it may be equally relevant to claims of personal injury involving accidents and the consumption of alcohol or more simply, to the daily practice of law. Bill Powers lectures on such issues on a regular basis with the intent to educate, to be fair, to be accurate and to encourage, open, honest and scientific discussion on the subject. Attorney Bill Powers did NOT represent the Defendant in the particular cause of action.
You can be charged if someone else says you're driving. Being charged is easy, getting convicted is much harder. You need an experienced DWI attorney to challenge the evidence.
Austin Felony DWI Lawyer
My answers are intended only as general legal advice and are not intended to create an attorney-client relationship. There is no substitute for a full consultation with a local experienced criminal defense attorney. For more answers based on my 19 years of experience visit my website, www.austincriminaldefenseattorney.com
In jurisdictions such as Massachusetts, operation is a necessary element to prove Operating Under Influence. Court decisions have interpreted "operating a motor vehicle" as occupying and having the ability to control or set the vehicle in motion. Stated otherwise, being in the vehicle with the keys (whether in ignition or not) will equate with "operation" for the purpose of proving the element of driving. If you are not in the vehicle you may have a valid defense.
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As another attorney posted, getting charged is one thing. Getting convicted is another. Remember, the state must prove each element "beyond a REASONABLE doubt. Based upon the evidence, testimony, etc., is it REASONABLE to beleive that your vehicle appeared where it did by any means other than by your own operation. Did your"friend" say that you were driving just to save her hide? Another area to focus on is the allegation that you were intoxicated at the time of the operation. How long did it take for the law to arrive? Who said what and what did you admit. Qualified counsel is critical in cases with this kind of ambiguity.
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Based on the information that you have provided, I believe that the State will certainly have a difficult time proving the "driving" element of DWI. It is not cut and dry, so you should hire an attorney who practices in the County where you were charged. In some instances, the State will dismiss such a case prior to trial if they determine that they will be unable to prove an essential element.
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