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A question I often get asked is, “Can you get a DWI/DUI if the officer didn’t see me drive or operate my vehicle?” The basic answer, if the laws are strictly black and white, is yes you can, however, the laws in Minnesota are anything but black and white and fall mostly into a grey area upon which an experienced attorney can find exceptions to the law.

Both the United States and the Minnesota Constitution prohibit “unreasonable search and seizures”. That sounds simple enough but then we must examine what would be considered an unreasonable search and seizure. Most people and all of the courts would agree that an officer can stop a vehicle if the driver commits a traffic violation such as speeding or failing to signal a lane change. But what if the officer didn’t see you drive the vehicle and is relying on information provided by a 911 caller or an employee of a business. This is the grey area of the law mentioned above and requires an analysis of the past cases in Minnesota.

It is unlawful in Minnesota for a person to drive, operate, or be in physical control of a motor vehicle while under the influence of alcohol. Clearly driving or operating a motor vehicle means just what it says. You can’t be driving or operating your vehicle after you have been drinking and if you do the officer will likely be justified in stopping or detaining the driver of that vehicle. Physical control of a motor vehicle brings us back into that grey area of the law discussed earlier. A person is in physical control of a motor vehicle if the person has the means to initiate any movement of that vehicle and is in close proximity to the operating controls of the vehicle.

An investigative stop of a motor vehicle is considered a seizure under Minnesota law and thus protected under the Constitution. An investigative motor vehicle stop must be justified by some objective facts that person/driver is, or is about to be, engaged in criminal activity. A police officer cannot stop or investigate your vehicle based upon a hunch or mere curiosity. The law requires the officer to be able to point to specific detailed facts which, taken together with other facts known to the officer would justify his intrusion on your privacy and support his reason for detaining or questioning an individual.

This is where different facts in each unique case come into play and the courts in Minnesota will apply the specific objective facts of each case and determine whether or not the officer in your specific case was justified in seizing/detaining you while he conducted his investigation into alleged criminal activity. Below are some examples of cases where the court looked at driver/operators and whether or not they were in physical control of their vehicle.

Many times a person will think they are ok to drive after drinking only to discover once they are on the road that they are in fact feeling the effects of the alcohol after all. They make the decision to pull over onto the side of the road or into a parking lot to sleep until the effects of the alcohol wears off. To people not familiar with the concept or definition of physical control this seems like a smart decision. However the courts in Minnesota look at that decision differently.

In State v. Fleck, 77 N.W.2d 233 (Minn. 2010), the driver of the vehicle was sleeping in his car, the car’s lights were not on, the hood of the car was cold to the touch of the officer’s hand, and it did not appear to the officer that the vehicle had been recently driven. However, the keys to vehicle were in the console and accessible to the driver. The Court held that the driver was in physical control of the vehicle because nothing was preventing the driver from operating the vehicle and the driver was in close proximity to the controls of the vehicle. The court determined that the driver could have woken up at any time and driven that vehicle and thus in Minnesota they were in physical control of the vehicle while under the influence of alcohol, and lawfully arrested.

Another recent case that dealt with physical control of a motor vehicle was Frisch v. State, 840 N.W.2d 426 (Minn. Ct. App. 2013). In that case the officer testified that he believed he saw the driver of the vehicle but then lost sight of the vehicle for a few moments. The officer later saw the vehicle in a parking lot of a store. The alleged driver of the vehicle was 15-20 feet from the vehicle at a soda machine. The vehicle’s lights were off but it was running with the keys in the ignition. The driver eventually admitted to the officer that he was going to drive a friend home. So even though the officer himself did not see the driver actually drive or operate the vehicle, the court found that he was in physical control of that vehicle and thus could be charged with a DWI/DUI.

In Minnesota the laws give an officer a lot of discretion in placing drivers under arrest for DWI/DUI. As the two cases above indicate, you can be arrested for a DWI even though you are not actually driving the vehicle at the time the officer makes contact with you or your vehicle. If someone is too intoxicated to drive it is ok for them to “sleep it off” in their vehicle but they can’t have access to their keys or they run the risk of being considered in physical control of their vehicle. In fact, there are many cases where somebody goes down to their car in the parking lot or driveway to charge their cell phone. In most cases, unless its winter in Minnesota, they don’t even start their vehicle. Instead they just turn the key to the power position to listen to the radio while their phone charges. In this scenario if an officer makes contact with the individual charging their phone, that individual could be charged with a DWI/DUI by being in physical control.

The two cases listed above and the hypothetical situations as described give scenarios where someone could be arrested and charged with a DWI/DUI. However, as with most criminal cases the law is not black and white but grey. That is where an experienced attorney, with extensive knowledge of the criminal justice system can be a huge benefit. I, along with all of the other attorneys at Dudley & Smith, am always willing to discuss your case and its specific facts with a free initial consultation. Please feel free to contact us at any time to set up your consultation.

This post was written by John C. Lillie, III, a criminal defense attorney at Dudley and Smith, P.A. Mr. Lillie has been representing criminal defendants for many years in a wide variety of alleged offenses. If you have been charged with a crime or have questions about criminal law, please contact Mr. Lillie at 651-291-1717.