re: Could I have gotten a DUI?

A good friend was drunk didn't want to drive home from where she was a few years ago. She started her car to turn on the a/c and sleep it off. A cop passed by a couple of times and noticed the car running each time with no one visible in it. He got out to check on it, and boom...DWI on private property.

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She started her car to turn on the a/c and sleep it off

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One question an attorney will always ask is, "What was the reason/infraction that lead to the cop pulling you over". This goes to constitutional rights under 4th and 5th amendment. So I'm sure a good lawyer would get her charged dismissed.

Google taught me this about LA law:

The DWI statute says: "The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exist:" BAC over .08, on drugs, etc.

They don't have to prove you drove a vehicle on a public road, but they do have to prove you were "operating" it somewhere.

Cops often find people sleeping behind the wheel and use circumstantial evidence (keys in ignition, motor running, how else did he get there, etc. to prove he was operating.

Here is what a LA court said about "operating":

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La. R.S. 14:98 does not require proof that the defendant was driving a vehicle, and the jurisprudence recognizes that the term “operating” is broader than the term “driving.” State v. Rossi, 98–1253 (La.App. 5 Cir. 4/14/99), 734 So.2d 102, writ denied, 99–0605 (La.4/23/99), 742 So.2d 886. However, in order to operate a motor vehicle, defendant must have exercised some control or manipulation over the vehicle, such as steering, backing, or any physical handling of the controls for the purpose of putting the car in motion. Id. at 102–03. It is not necessary that these actions have any effect on the engine nor is it essential that the car move in order for the State to prove the element of operation. State v. Johnson, 580 So.2d 998, 1001 (La.App. 3 Cir.1991).

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With regard to the public road issue, a Louisiana court said this:

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Defendant was charged with one count of unlawfully operating a motor vehicle while intoxicated, fourth offense or greater, in violation of La. R.S. 14:98(A)(E). As the trial court correctly noted, the enforcement of La. R.S. 14:98 is not limited to public thoroughfares. On at least two separate occasions, this Court has held that where a vehicle is driven while the driver is under the influence is not an element of the offenses enumerated in La. R.S. 14:98.

In State v. Cowden, 04–707 (La.App. 5 Cir. 11/30/04), 889 So.2d 1075, 1087–88, writ denied, 04–3201 (La.4/8/05), 899 So.2d 2, this Court acknowledged: LSA–R.S. 14:98 does not include as an element of the crime that the offense must have occurred on public property, roads, or highways. Further, in State v. Landeche, 447 So.2d 1201 (La.App. 5 Cir.1984), this Court held that a person could be charged and convicted under LSA–R.S. 14:98, even if the operation of a motor vehicle was not on a public street or highway. Also, in State v. Smith, 93–1490 (La.App. 1 Cir. 6/24/94), 638 So.2d 1212, 1215, the appellate court stated that, “[t]he DWI statute does not limit the prohibition of driving while intoxicated to driving on state highways, and evidence of operating a vehicle while intoxicated, even in the ditch, constitutes evidence of the offense.”

Further, as cited by this Court in Landeche, supra, the Louisiana Supreme Court in State v. Layssard, 310 So.2d 107, 110 (La.1975), stated: “The statute (R.S. 14:98) does not limit the prohibition of drunk driving to highways, and evidence of driving while intoxicated, even in the neighbor's yard, would constitute some evidence of the offense.” (Underlining provided.) Landeche, supra, at 1202. [Emphasis as in the original.]

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One question an attorney will always ask is, "What was the reason/infraction that lead to the cop pulling you over". This goes to constitutional rights under 4th and 5th amendment. So I'm sure a good lawyer would get her charged dismissed.

Agree if it's on a persons property. But if the car is located at a bar, gas station, McDonald's, etc. the cop would have a legal reason to be there.

ETA how would that violate the 5th amendment? As well as the 4th?

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One question an attorney will always ask is, "What was the reason/infraction that lead to the cop pulling you over". This goes to constitutional rights under 4th and 5th amendment. So I'm sure a good lawyer would get her charged dismissed. 

Agree if it's on a persons property. But if the car is located at a bar, gas station, McDonald's, etc. the cop would have a legal reason to be there. 

ETA how would that violate the 5th amendment? As well as the 4th?

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Well, I was driving my unit down the street and observed a man sitting in his driveway in a running vehicle drinking from a wine glass. Oh, and there were children jumping and falling over the seats.


You are aware that the police can come onto private property if they observe a crime, right?

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That part is fake news

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Oh, well that part doesn't even matter.

It's hilarious people are dismissing that they could get a DUI and saying it would be thrown out instantly. OT lawyers everywhere