A man from Glendale recently defended himself in court against charges that he was guilty of drunk driving. He unfortunately was not able to win his case, and his recent conviction will be counted as his 12th DUI.
However, the scenario surrounding his arrest as well as his later arguments in court highlight an important aspect of DUI defense. A prosecutor must prove that the driver was both drunk and operating the vehicle.
In December of 2008 a Glendale police officer pulled her own car over and approached the defendant's car. It was stuck in a snow bank. She found the man at the wheel of his car but did not see him driving it. His behavior and the smell of alcohol suggested he was intoxicated and this was later confirmed by a field sobriety test. He had a BAC of .322, which is nearly four times the legal limit.
While representing himself in court, the man did not deny that he had been drunk that day. However, he argued that the police officer was the only witness to the event, and she could not prove that he was driving or attempting to drive the vehicle. Because there was no proof of vehicle operation, a drunk-driving charge was unwarranted.
The whole incident was recorded by a dash-mounted camera in the officer's vehicle, and the video was used by prosecutors as evidence in court. The video showed that the car did not move because it was stuck in a snow bank.
However the video did show that the man's back-up and brake lights were flashing on and off. This evidence convinced the jury that the man had been trying to drive the car. He was convicted after only 15 minutes of deliberation.
In Wisconsin DUI cases it must be proven that someone in a car was both intoxicated and operating the vehicle. In many states, such as Minnesota, a driver can be charged with DUI even if he was clearly not intending to drive. Under the legal concept of "actual physical control," an intoxicated person can be charged with DUI if they merely have the capacity to drive. This can be as simple as having the car turned on for warmth.
This man was unable to win his case, but his legal arguments remind us that drunk-driving prosecutions depend on evidence of both intoxication and vehicle operation.
Source: Milwaukee Journal Sentinel online, "Driver who had .322 BAC handles own defense at murder trial for 12th DUI," Bruce Vielmetti, 11 March 2011