Written by attorney Shamoon Aziz Budhwani

Can a person be convicted for a DUI if the police did not actually observe them driving?

The typical scenario in a DUI arrest is one where a police officer pulls someone over and then determines they should be arrested for driving under the influence of alcohol. Under this scenario the officer observes the person driving. However, there are situations where an arrest is made without the officer making such an observation.

Often times the officer arrives at the scene after an accident has occurred. This can even be a solo accident or simply a driver who had a flat tire. In those situations, can a person be arrested and subsequently convicted of driving under the influence (DUI) if the officer never observed the individual actually driving?

The answer is yes. One of the required elements that must be proven to find an individual guilty of DUI is that they were “driving" while under the influence. However, the rule is not concrete. The arresting officer can still make an arrest for DUI without observing the person driving but must meet some additional requirements. This adds an additional set of burdens for the government when prosecuting the driver for the DUI.

When an officer does not directly observe driving, it opens the door for more complicated arguments and perhaps a weaker case. When this is the situation, the prosecutor has to build the case circumstantially. In other words they will have to create their case based on the surrounding facts, looking at any witnesses and statements made by the driver.

For example, if there are people who saw the driver driving and are willing to attest to that fact, the case becomes stronger for the prosecution. If a driver is found sleeping in the car at the side of the road, with the keys in the ignition and the radio on, these facts point to a strong presumption that you were driving. In contrast, if you are parked in a parking lot, sleeping in the back seat with the keys in your pocket, the government will find it more difficult to prove that you were driving and will have a weaker case. However, the most damaging is when an individual simply “admits’" to the police officer that they were driving the vehicle. Once the admission is recorded the prosecution’s case becomes much simpler. It is always the best course of action for an individual to say nothing to the officer at the scene and let them independently conduct their investigation. This does not mean lie. It simply means to exercise one’s right to stay silent.

Regardless, the reality is that most individuals arrested for a DUI did not have the advantage of reading this blog prior to the incident and most cooperated with the police in assembling facts against them. However, one should not that there are innumerable situations, as demonstrated, some weaker then others. There are diverse amounts of arguments that can be made by both sides. An experienced DUI attorney will know exactly how to present the facts so as to create the strongest possible case for to obtain a dismissal.

Get the help you need to make sure the prosecutor will not present the facts in an unfavorable light to you, and get an attorney that will confidently weaken the government’s case and present the facts to strengthen the defense.

Additional resources provided by the author

To learn more about DUI’s visit Core Law group’s blog at or call one of our attorneys at 888-652-5529.

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