As far as DUI's go in passengers of vehicles, obviously 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 vehicle.
Even if a passenger is very drunk and couldn't operate a vehicle, then that person still can't be charged with a DUI. It's possible that the person could be charged with being drunk in public, but that seems highly unlikely if they're simply a passenger in a vehicle attempting to get home.
Drunk in Public
Where a problem could develop is 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 charged with being drunk in public and have to be sent into court.
Having done these DUI cases for the past twenty-five years though, I have seen situations where people are claiming to be passengers in a vehicle, and they were really the driver of the vehicle, and 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 actually 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. If 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, then 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 actually the driver of the vehicle.
Really, 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 in order 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 actually 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 and 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 arbiter as to whether you were the driver or a passenger for purposes of a DUI.