Without proof of driving, there's no case for DUI

02/06/2013 9:52 PM

05/16/2014 8:50 PM

Can police arrest someone for driving under the influence for simply being passed out behind the wheel of a parked car?

That question has lingered since last month, when Kansas City Chiefs linebacker Jovan Belcher killed his girlfriend and later himself — five hours after Kansas City police encountered him asleep in his Bentley.

Police didn’t arrest him. They said that they didn’t smell alcohol on him and that he wasn’t acting drunk.

The issue gained steam this week after the release of Belcher’s autopsy results, which revealed his blood alcohol level was double the legal driving limit at the time of the killings. But, lawyers point out, that doesn’t provide any evidence about his state five hours earlier.

Some people wonder why Belcher wasn’t busted. But experienced lawyers I know say nobody catches breaks on DUI anymore. Nowadays, cops arrest other cops. High-profile arrests can be seen as valuable trophies for police and prosecutors.

What it comes down to, police and lawyers say, is enough proof on two counts: intoxication

and

evidence of driving.

One without the other and there’s no case.

“There’s no law against sitting in your car drinking,” said Sgt. Ron Podraza, who supervises the Kansas City Police Department’s DUI enforcement.

Podraza said it used to be much easier for police to cite intoxicated drivers caught behind the wheel in parked cars. That changed in 1996 when Missouri lawmakers narrowed the definition of “driving” in the state’s DUI law. The previous definition was “physically driving or operating or being in actual physical control of a motor vehicle.” The amended version removed the last clause about being in “actual physical control.”

“The wording was critical,” Podraza said. “Years ago, we wouldn’t need to know all the circumstances. It’s just not that simple anymore.”

One factor Kansas City police now consider when deciding to pursue an arrest is the location of the vehicle and the location of the car keys.

No keys in the vehicle? Most likely no ticket.

Keys in the ignition but the engine not running? Maybe. It depends on other circumstances. Engine running? Chances are better for arrest, but it’s not a sure thing without some evidence that the car was recently in motion.

Parked on private property, like a restaurant parking lot?

A driver could be surrounded by empty booze bottles and Kansas City police wouldn’t be likely to arrest in that situation unless a witness saw the person actually driving, Podraza said. The person inside the vehicle could provide a million defenses.

“Try to prove that one,” Podraza said. “He could say he was drinking after he pulled over.”

The case of a driver asleep in a car legally parked on the side of the road faces similar hurdles.

But drivers passed out behind the wheel at an intersection or in a lane of traffic are nearly sure to be arrested, Podraza said. Their location alone indicates they had been driving before they conked out.

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