As far as DUI's go in passengers of vehicles, you're not going to be able to be charged with a DUI if it can be shown that you're simply a passenger in the car.
Even if a passenger is very drunk and can't operate a vehicle, then that person still can't be charged with a DUI. It's possible that the person could be accused of being drunk in public, but that seems highly unlikely if they're simply a passenger in a vehicle attempting to get home.
A problem could develop if they got outside the vehicle and were too drunk to care for themselves, then instead of being charged with a DUI, they could be accused of being drunk in public and have to be sent into court.
Having done these DUI cases for the past twenty-five years, I have seen situations where people claim to be passengers in a vehicle. They were the driver of the car. The issue becomes – is somebody going to be able to identify them as a driver – or from the circumstances of the case, are they going to be determined to be a driver.
I've seen cases where people who have got in accidents have been DUI, and they've switched places with the passenger, and then there are witnesses claiming that the passenger was the driver of the vehicle, and now the police are left to sort things out.
I've also seen situations where the police come upon a vehicle, and there's only one person in the car – they may be in the passenger seat, and the police attempt to claim that they were the driver of the vehicle.
Of course, you're going to have to look at the surrounding circumstances of the case to determine whether this person is the actual driver for purposes of a DUI or simply a passenger. Suppose someone's out in the middle of a freeway, and there's a bunch of traffic, and they're the only ones in a car. In that case, there's a pretty good argument that they're the ones that drove that car back, and therefore, instead of being a passenger, they are the driver of the vehicle.
When it comes to determining whether someone is a passenger for purposes of a DUI versus a driver, it's going to depend on the surrounding circumstances of the case and whether there are any witnesses, and what evidence the police can bring to bear to attempt to prove that the person is guilty of a DUI.
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So, if you find yourself in a situation where you are being charged with a DUI, and you were a passenger in the car, obviously you want to get in front of a criminal defense attorney who does DUI's for a living and can argue the facts for you and can prove that you were not the driver of the car – that you were, in fact, the passenger. You shouldn't be charged with a DUI.
Sometimes these cases have to be taken to trial and fought in front of a jury, and the jury has to be the final judge as to whether you were the driver or a passenger for purposes of a DUI.