The police officer did not see me commit a traffic violation or witness any bad driving, how can I be charged with a DUI?

A police officer cannot arbitrarily pull you over. For a police officer to make a legal stop, they must have a reasonable suspicion that a person committed a crime or a traffic violation. See State v. Richcreek, 187 Ariz. 501, 930 P.2d 1304, 1308 (1977) and State v. Superior Court (Blake RPI), 149 Ariz. 269, 718 P.2d 171 (1986).

The police do not have to observe you driving in order to have a reasonable suspicion. Were you in an accident? Did someone else see you driving and inform the police? Is informant listed as a witness? A police officer is driving down the road and someone yells “hey that driver of that car is drunk.” The officer then pulls the car over. If the officer does not know the person who yelled, how do we know the information was reliable? Is the stop based upon a reasonable suspicion? If the person who yelled leaves without providing additional information including their identity the information is even more suspect.

In State v. Altieri, 191 Ariz. 1, 951 P.2d 866 (1997), the Arizona Supreme Court held that an anonymous tip about criminal activity was insufficient to support reasonable suspicion. However, the court in State v. Gomez, 198 Ariz. 61, 6 P.3d 765 (App.2000), said that a stop based upon a “citizen complaint” with a traceable phone number, is constitutional.

Another DUI scenario that occurs in Arizona happens when a car is not moving. Examples include: a bicycle officer rides up and looks in a parked car and sees and open container; the window in parked car is down and the officer driving by smells marijuana; or a person is asleep or passed out in a vehicle and an officer does a “welfare check.” The officer has not made a “stop” but he does have a reason to make contact.

If you are in a car that is not moving and you have the ability to drive, you can be charged with DUI-Actual Physical Control. There is not a bright line rule that tells you what constitutes actual physical control. The Arizona Supreme Court in State v. Love, 182 Ariz. 324, 326, 897 P.2d 626, 628 (1995), stated that the issue of actual physical control required the trier of fact to determine “whether the defendant was simply using the vehicle as a stationary shelter, or actually posed a threat to the public by the exercise of present or imminent control over the vehicle while impaired.” In State v. Zaragoza, 221 Ariz. 49, 54, ¶ 21,209 P.3d 629, 634 (2009), the court said it is up to the jury to decide if a person was in actual physical control.

If you are in the driver’s seat after drinking or ingesting drugs and the engine is running, the odds are the police will charge you with DUI/Actual Physical Control. Not all cases are the same. If you passed out in the intersection with your car in drive while waiting for the light to change, the case is better for the police. I have handled several cases where the police knock on the window multiple times and then use two police vehicles to block in the car so that the driver does not wake up and take their foot off the brake. I have also handled a lot of cases where people have fallen asleep in a drive thru or at the gas pump.

Conversely, if you realize that you had too much to drink and pull completely off the road, this can be explained to a jury. Pulling off the road is what society wants you to do when you think that you had too much to drink. It is often still over 100 degrees at night in Arizona. There is a good chance that a person who pulls off the road will have the engine running and the air conditioning turned on.

So the answer to the question of “can you be charged with a DUI if a police officer did not see you driving or committing a traffic violation?” is, yes. But being charged is not the same as being convicted. There are constitutional issues, reliability issues and jury issues that come into play. If you have questions concerning a stop or the element of driving, you should seek the help of an experienced DUI lawyer.