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Elements of Proof

As with all crimes, the state has the burden to prove the elements of a DUI beyond a reasonable doubt. The following elements must be proved in order to obtain a conviction against a driver:

  • Driver was operating the vehicle

States have different definitions of "operating." In some states, the driver who is pulled over on the side of a public road with her keys in the ignition is "operating" a vehicle.

TIP: Check your state laws to find the definition of "operator." It is possible that you might not fall under the legal definition and your ticket will be dismissed.

Am I operating a vehicle if it was not running and I was steering it to the side of the road?

Yes. The engine does not have to be running to fall within the definition of "operating" a vehicle.

The police were called when a passerby saw my brother’s vehicle in a ditch. Since he was not driving when the police arrived, was he operating a vehicle?

Yes. However, the prosecution will have to offer evidence that your brother had been driving prior to putting the vehicle in a ditch. You brother may have admitted it to the police, a witness can testify, or an expert can testify that the evidence at the scene (e.g., skid marks) proves he had been driving on a public road. It is likely the jury will believe the evidence and find your brother had been operating a motor vehicle.

If a person is passed out in their stopped car, how can she be "operating" a vehicle?

The evidence at the scene will prove she had been driving. Typically, in this type of situation, the police officer that issued the citation will testify to facts such as:

  • person passed out in front seat
  • keys in the ignition
  • engine running
  • car in gear

Any of these indications show that at some point prior to passing out, the person was driving or operating the vehicle. Additionally, the person could, upon regaining consciousness, be able to operate the vehicle at any given moment.

  • On a public road

TIP: Driving in a private area, such as a restaurant parking lot, may not rise to the level of operating a vehicle, if the definition requires that the vehicle be on a public road.

I was driving through a hotel parking lot when I was cited for DUI. Isn’t this a private road?

Probably not. Although the parking lot may be privately owned, because the hotel is open to the public, permission does not have to be granted for a person to drive through the lot, and the parking lot is a common area, it is a "public place."

SIDEBAR: Current DUI laws in many states have been broadened to "public place" or "open to public access" rather than "public road." Thus, hotel parking lots, fast food lanes and other privately owned business open to the public fulfill the public place requirement.

TIP: Some states, such as California, do not restrict location at all. Driving under the influence of drugs or alcohol violates the law whether it occurred on public or private property.

I was arrested for DUI when I got lost on a long driveway I thought was a road. Is the driveway a public or private road?

It is a private road and you cannot be convicted of a DUI since the public road element is missing (unless you are in a state that does not make a distinction between public and private places).

SIDEBAR: Although a driveway may be open to the public, intersect with a county road or highway and even be maintained by the county, if it is on private residential property (as opposed to private property open to the public such as a hotel), it is not public for purposes of some DUI laws.

Can I be convicted of a DUI if I was driving through a privately owned trailer park?

Yes, in states where driving in a public place or one open to public access is prohibited, the trailer park qualifies since the public has access.

TIP: Laws in some states still require a public road (rather than access). Oklahoma, for instance, prohibits driving while intoxicated on highways, turnpikes or public parking lots. A privately owned trailer part does not meet the Oklahoma standard.

Is a gated subdivision considered a public place or open to public access?

Yes. Typically, the subdivision is open to residents, guest and invitees. Additionally, it is unusual that anyone is ever turned away from entering.

  • Driver’s faculties were impaired

Without a medical test of some sort, impairment is proved through the officer’s and other witnesses’ testimony. A police officer is considered an "expert" in these matters and she can testify to her opinion that the driver was intoxicated or impaired based on her observations. Erratic driving, unintelligible speech, the smell of alcohol, a flushed face, bloodshot eyes and nervousness are the types of facts that the officer will testify to in court.

TIP: Most police vehicles are equipped with video cameras, some with audio able to record the suspect’s every move.