The facts as you state them would not be enough to be convicted of DUI. If you were convicted at a trial, you have a set period of time in which to file an appeal to a higher court. If you entered a plea to the charge, you may not have rights to appeal. You should consult with an attorney to make sure of your rights.

Answer Applies to: Kansas
Replied: 11/7/2011

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If you were convicted already, it is for all practical purposes not worth fighting. The State has to prove beyond a reasonable doubt that you were driving while under the influence of a controlled substance. Generally this is accomplished by somebody testifying that they saw you drive and you were under the influence. It is not illegal to sleep in your car under the influence. Therefore it would be difficult for the State to prove you were driving unless you admitted driving.

Answer Applies to: California
Replied: 11/6/2011

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You may be able to beat the charge if the officer did not see you drive the car. You should seek legal counsel to assist you in defending the charge.

Answer Applies to: Georgia
Replied: 11/6/2011

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DUI requires that you are driving the car which means that you are causing the car to move. Being asleep in the back seat is not driving. You should appeal your conviction, however, in order to appeal a conviction you must file an Notice of Appeal within 30 days of the conviction.

Answer Applies to: Oregon
Replied: 11/5/2011

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Since you haven't been convicted of anything yet there is no reason to appeal. You need to retain an attorney who can analyze the lawfulness of your arrest. The police can charge you without seeing you driving but the arrest must conform to certain standards. They always give the breath test twice to validate the result.

Answer Applies to: California
Replied: 11/5/2011

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The law for DUI in Illinois is very strict in that one can either be actually operating the motor vehicle OR merely in "actual physical control" of a motor vehicle to being proven guilty of a DUI - even though you may not have been actually driving at the time of the investigation. Although the keys were not in the ignition, if the facts reveal that your keys were in your immediate control and the vehicle could have been started with relative ease, this may be enough evidence to sustain the conviction. It sounds like the case is still pending so there would be no need to appeal anything yet. You do, however, have a right to challenge the DUI at trial if the evidence is lacking. With respect to the breathalyzer machine, an attorney would have to subpoena the records for the particular device that was used to determine if the machine's accuracy can be effectively challenged. Also, the breath machine operator has to have a current and valid State license in order for any BAC result to be admissible.

Answer Applies to: Illinois
Replied: 11/4/2011

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An OWI results from your operation of a motor vehicle while under the influence of alcohol. Sleeping in the back seat may not be operation. You should consult with an attorney to determine what defenses you have and how to proceed to bring those defenses before the Court.

Answer Applies to: Michigan
Replied: 11/4/2011

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I have had clients charged with DUI in similar circumstances, though not with client asleep in the backseat! The DA who charges you in this is PRESUMING that you were driving at some point. However, there may not be sufficient proof of that. Depending on where your car was parked, and whether other persons could driven it, and no other witnesses or evidence that YOU were driving then you could win the case.

Answer Applies to: California
Replied: 11/4/2011

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You should call an attorney for a consultation. It is not clear from your question if you have been charged or already convicted. If you are charged, your attorney can present a "no drive" defense, and/or run a motion to suppress, depending upon the other facts. If you were convicted, you should consult an appellate attorney, who will give you advice on whether or not you should appeal.

Answer Applies to: California
Replied: 11/3/2011

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It is standard to require 2 breath tests, so there was nothing unusual about that. In order to charge you with DUI, there has to be driving. I wonder if someone saw you driving and reported you to the police, who then made the arrest. It would be interesting to see the police report and any witness statements. You inmdicate in your statement that there was a "conviction", which would mean a judge or jury found you guilty. There must have been evidence of driving. Didn't you have an attorney representing you at trial?? Consult with an attorney.

Answer Applies to: Washington
Replied: 11/3/2011

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Just because they charged you with a DWI does not mean that probable cause existed for the arrest. They need much more evidence to get passed the probable cause hearing that you are entitled to, they need much more evidence to prove there charge beyond a reasonable doubt. That is, that in fact that you were driving WHILE intoxicated. Who is to say that you weren't sober, stopped at a certain location, started drinking and eventually passed out in the vehicle? You case is the type of case that the gives the assistant district attorney's serious proof problems.

Answer Applies to: New York
Replied: 11/3/2011

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Appeal the conviction? You should fight the arrest and never have a conviction. That is a no-brainer, if you have the right lawyer.

Answer Applies to: California
Replied: 11/3/2011

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Honestly, there is a legal defense to be made on this case because you might not have been in actual custody of the car. I would strongly recommend retaining counsel. Before worrying about appealing the conviction, which you have the right to do, you also have the right to go to trial and the government will have to prove all of the elements of the crime charged against you beyond a reasonable doubt.

Answer Applies to: Nevada
Replied: 11/3/2011

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I'd recommend you retain a lawyer and plead not guilty. You are presumed innocent until proven guilty. The prosecutor must prove any allegations beyond a reasonable doubt. You have a right to council. OUI's carry significant license sanctions that go beyond just jail time and probation. Ultimately, whether the prosecutor would have the proofs at trial is a matter for a judge or jury. While a majority of cases end up being resolved through the plea-bargaining process, Never plead guilty to anything unless you fully understand all the risks. Most attorneys provide free initial consultations. It is certainly worth a few phone calls. I would advise you to retain a lawyer or request that the court appoint you a lawyer at the public's expense.

Answer Applies to: Michigan
Replied: 11/3/2011

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You mention an appeal, so I assume there was a conviction. If done by plea, then not a great chance on appeal. If after a trial, it will depend on the facts. If admissions were made that there was drinking, then driving, then falling asleep after stopping, then the appeal is not as strong. You can always appeal, the question is whether there is a realistic chance to win. You should hire an attorney to review your specific facts and check into a possible appeal. I hope that this was helpful.

Answer Applies to: Michigan
Replied: 11/3/2011

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You can be charged with DUI even if when the cops found you the car was not in motion, but that is not always the case. There are certain requirements that need to be met in order for the charge to go forward such as whether the key was in the ignition or the location of the car. You should definitely consult with a lawyer so that you can further explain the details of your situation, and thus get more structured advise.

Answer Applies to: New York
Replied: 11/3/2011

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When you say that you want to appeal this "conviction", was there a trial or did you plead guilty? A trial is much easier to appeal than a voluntary plea of guilt. If you haven't been convicted yet and have only been charged with a crime, then I suggest you discuss your defense with an experienced criminal defense lawyer.

Answer Applies to: New York
Replied: 11/3/2011

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First and foremost, take this situation seriously and speak to a lawyer. You need to protect your legal rights and representing yourself is not the way to do so.

Answer Applies to: Massachusetts
Replied: 11/3/2011

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Were you convicted. Grounds for appeal are strictly legal, not factual. However, it is not a DUI to be in a car sleeping while drunk.

Answer Applies to: Washington
Replied: 11/3/2011

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A DUI, in California, requires actual movement of the vehicle. If you were never driving then you have an excellent case to fight. But you MUST request a hearing with the DMV, otherwise, the DMV will suspend your license if your BAC was above the legal limit. They wont just look at the report and say you weren't driving, you have to make the argument. Same with the Court. The disctrict attorney is likely to still file DUI charges, so you will have make the argument that the law requires actual movement and that you never drove the vehicle at any time. Even if there was an admission to driving, a time of driving must also be established in order to be able to presume that the BAC result was your BAC at the time of driving. Regarding the breath machine, the fact that they made you blow twice doesn't mean anything. Standard practice is make the individual blow at least twice. This is done to ensure reliability of the result. However, that doesn't necessarily mean that the machine is accurate. A good attorney will be able to investigate the case and request all relevant records to present the best case possible. If you haven't already done so, you only have 10 calendar days to request a hearing with the DMV. As I said previously, if its not requested your license will be suspended.

Answer Applies to: California
Replied: 11/3/2011

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Were you already convicted? If so, yes you can appeal, I am not saying the appeal will win, but you can, as long as it has been less than 30 days since you were convicted. If you pled guilty you most likely waived your right to appeal, but that has to be verified.

Answer Applies to: Texas
Replied: 11/3/2011

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Yes, you SHOULD appeal this conviction. Quite frankly I don't know how you got convicted in the first place. The law in New York State regarding the essential element of "operation of a vehicle", is that the State must prove beyond a reasonable doubt that the defendant had driven the vehicle or had the present intent to drive the vehicle. Without such a showing of one or the other of these there should have not have been a conviction. Although a person asleep in a car does provide sufficient probable cause to make the arrest, more must be shown to actually achieve a conviction.

Answer Applies to: New York
Replied: 11/3/2011

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If you are asleep in your car and you have your keys in your possession, you can be charged and convicted for being drunk in possession. the fines, conviction and punishment is the same as drunk driving. Your defense should be that you did not show any intent to operate the vehicle but this does not always work. The breath test is always administered twice with the lowest reading being the one recorded.

Answer Applies to: Alabama
Replied: 11/3/2011

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You not only have a good defense to the DUI charge, you are innocent. The D.A. needs to prove not only that you were drunk and were in the car; he needs to prove you drove it while under the influence. Based on the facts you stated you should not only challenge the charge in court but also the APS suspension. You should consult with and probably hire a good attorney to help.

Answer Applies to: California
Replied: 11/3/2011

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Yes, you may be charged with DUI. However, that doesn't mean that the prosecution will prevail. I'm a bit confused because you ask if the conviction can be appealed. If you have already plead guilty, then the relief would be to file a Motion to Withdraw Guilty Plea. Be aware that there are time limits that must be followed for that motion. In terms of the breathalyzer, Title 17 requires that two samples be obtained in order for the sample to be valid.

Answer Applies to: California
Replied: 11/3/2011

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You can be charged, if there is evidence that there is probable cause to believe you operated a motor vehicle while under the influence. You can be convicted, if the evidence is convincing beyond a reasonable doubt. The scenario you described opens the possibility for reasonable doubt but I can't say any more than that without knowing what the police have to say about any other evidence they believe they have. You should hire a lawyer. You do have the possibility of a valid defense. A lawyer will know how to exploit that to your advantage.

Answer Applies to: Indiana
Replied: 11/3/2011

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A person may be charged with a DUI if found asleep in the car. You are right that being in the back seat and not having the keys in the switch will help in your case. Depending on your BAC and the other facts of your case this may be one to take to trial.

Answer Applies to: California
Replied: 11/3/2011

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First of all, the keys would be in the ignition, not the engine. Second, I think you mean you were arrested, not convicted. If you did not admit to driving and you were in the back seat with the keys in your pocket, not in the ignition then you will not be convicted of DWI. The police can claim that you did not blow hard enough the first time so they did a second test, and that is not a problem for them. You did not tell me what the test results were, but anything over a .08 is over the legal limit. Drinking and driving is like firing a gun at a moving train and hoping that no one gets hit by the bullets. You should have taken a taxi and not slept in your car. There is a service called Designated Driver that will drive you home to a friend's house in your own car. That would have been a better choice. Life is about making good decisions. That requires a good education, good judgment, good morals, good advice, and a lot of experience in making bad decisions.

Answer Applies to: New York
Replied: 11/3/2011

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It sounds like a legal arrest, but you were convicted or is the case still going on.

Answer Applies to: New York
Replied: 11/3/2011

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You want to fight the case up front so you don't have to appeal it. Contact a lawyer that handles DUI/Criminal cases and they should be able to protect your rights.

Answer Applies to: Nebraska
Replied: 11/3/2011

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You always have to take the test twice in order for the readings to be admissible. You can be charged with a DUI, but if you can prove you had no intent to drive, you should win.

Answer Applies to: New Jersey
Replied: 11/3/2011

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Would need more info. How did the car arrive at the location? If driven, that's a problem. Arguably there's no illegality to sleeping (impaired or not) in a vehicle, only operating when under the influence. Even turning on an ignition while impaired is 'operating' the vehicle.

Answer Applies to: Louisiana
Replied: 11/3/2011

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I am not clear what you are really asking, you said appeal the conviction, does it mean you were already adjudicated. You need to talk to a lawyer.

Answer Applies to: Minnesota
Replied: 11/3/2011

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I certainly hope you did not mean it when you mentioned a "conviction." That means you have been found guilty or plead guilty. Based on the facts that you described, you are absolutely not guilty of DUI. Despite what many people think - including many lawyers who pretend they know about DUI law - you are not guilty of DUI for just being behind the wheel while impaired. The law requires that to be considered DUI you must be driving or in actual physical control of a MOVING motor vehicle. The car must go - it must MOVE. What confuses some lawyers is that the driving -the MOVING- can be proven by circumstantial evidence in some cases. But, it must be proven beyond a reasonable doubt. Just being impaired - even hammered- while sitting in a parked car even with keys in the ignition IS NOT DUI. I hope you will talk directly with a real DUI lawyer.

Answer Applies to: Georgia
Replied: 11/3/2011

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If they found you in the back seat with the keys not in the ignition the big question is: Was the hood hot to the touch suggesting recent driving. Did you tell them a friend of yours was driving and left.

Answer Applies to: California
Replied: 11/3/2011

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If you've already been convicted, then it is too late. If you haven't, it is time to contact a DUI specialist to help you. You seem to have a good "no drive" defense, but without a good lawyer the prosecutor will never buy it.

Answer Applies to: California
Replied: 11/3/2011

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In control of the vehicle is a type to DUI. You need to have your case analyzed by an attorney.

Answer Applies to: Minnesota
Replied: 11/3/2011

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There is a time limit to file your appeal. If you accepted a plea deal it will be nearly impossible to appeal. As far as how likely you would win if you fought the case that depends a lot on where the car was parked. If it was parked at the bar then you have a better chance.

Answer Applies to: California
Replied: 11/3/2011

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What conviction? The police arrested you. Have you gone to court and plead guilty? Been found guilty by a jury? No, then stop playing around and retain an attorney.

Answer Applies to: Georgia
Replied: 11/2/2011

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In a typical DUI arrest, the police observe some sort of erratic driving and make a traffic stop. However, this does not occur in all instances. The West Virginia Supreme Court has held that an officer does not have to observe an individual drive a vehicle to make an arrest for DUI, so long as the vehicle is in such a position that it had to be driven there by that person. This is where the cases of someone pulled off the side of a road or in a parking lot sleeping in the car come into play. This is a very difficult case for the State to prove without having a witness that actually observed some driving. In this instance, obviously the vehicle was driven there, but when, and by whom? Was it before the "driver" consumed any alcohol? How long had they been there before discovered by the police? All these questions, when presented in the right manner lead to one thing, and that is reasonable doubt! And when there is a reasonable doubt, you cannot be convicted of a DUI.

Answer Applies to: West Virginia
Replied: 11/2/2011

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If you are inside a vehicle with the keys in your possession, you could be considered to be in physical control of the vehicle and subject to charges. If the test was done twice that could raise an issue as to its validity, but does not necessarily suggest it was bad.

Answer Applies to: Minnesota
Replied: 11/2/2011

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They can't prove that you were drunk at any time that you may have operated the car so you should win.

Answer Applies to: New York
Replied: 11/2/2011

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Yes you should be able to beat the charge. If the keys were not in the ignition and the vehicle not running. You were not operating the vehicle. THey have to show that you were operating the vehicle to convict you.

Answer Applies to: Michigan
Replied: 11/2/2011

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Based on the facts that you have presented there may be a valid defense to this charge and i would urge you to seek the servics of an attorney who is skille in the representations of individuals charged with DUI.

Answer Applies to: District of Columbia
Replied: 11/2/2011

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Did you plead guilty or go to trial? Did the police confirm that they found you in the back seat without the key in the ignition? If you entered the car drunk and went to sleep it off in the back seat without trying to drive, you are not guilty of DUI. .

Answer Applies to: New York
Replied: 11/2/2011

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If you have just been charged in this case so far and have not been convicted then you have a good chance of winning this case.

Answer Applies to: New Jersey
Replied: 11/2/2011

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I would argue that you were clearly not in control of the vehicle. Depending on the county, the DA might concede that.

Answer Applies to: Pennsylvania
Replied: 11/2/2011

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I'm assuming that you mean a DWI, not a DUI (which is only for persons less than 21, and doesn't require actual intoxication). If you actually fo mean a DUI (which would also have been in JP or municipal court, not vounty court, if that helps), the rules are a little different than what I'm about to tell you. I'm not sure what you mean by "appealing" the caseI rather doubt that the case you've described, if those really are the only relevant facts, ever would have made it through a trial, and getting a guilty verdict at a trial is about the only way you'd be able to file an appeal. If you accepted a plea bargain, you waived your right of appeal. If you're still within the first 30 days after you pled guilty, you might be able to file a motion for new trial, though, depending on exactly what happened that led to the plea.

Answer Applies to: Texas
Replied: 11/2/2011

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You should not be charged bit it won't stop the state from charging you.

Answer Applies to: Michigan
Replied: 11/2/2011

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The issue you face is "driving" as defined in the DUI statutes. There are various decisions on control, a term "constructive control," Sounds as if you should consult a DUI lawyer, you are being persecuted for doing the right thing. As for two breath tests, the law requires two tests within .02% of each other.

Answer Applies to: California
Replied: 11/2/2011

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You should hire a good DWI trial attorney in your area and fight this. This is a classic wheel witness defense. You can't be DWI if you weren't operating a motorized vehicle.

Answer Applies to: Texas
Replied: 11/2/2011

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The police arrested you, and you were subsequently charged with DWI because you were arguably in "physical control" of the vehicle. You do not need to be operating a motor vehicle to be charged with DWI. The engine can be stopped and no keys can be in the ignition but if you have the ability to waken and then start the engine, the State will argue that you had physical control of the vehicle and thus move forward with criminal charges.

Answer Applies to: Minnesota
Replied: 11/2/2011

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What conviction? You said you were arrested, not that you went to trial and lost. If you were not observed driving and were not in actual physical control when arrested, you have a good defense to the charge. Take it to trial.

Answer Applies to: Washington
Replied: 11/2/2011

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I am a little confused and it may be just terminology. Have you been just charged at this point or convicted? If you have been just charged, then it sounds like you have a lot to go on to fight it. If you have already been convicted then you only have a short time to file an Appeal or to file for Post Conviction Relief. If you have been convicted, then you would have either had a trial and lost or signed a plea bargain. If you have just been charged so far then you would have gotten the ticket and maybe had up to a couple of court appearances where not a lot happened.

Answer Applies to: Arizona
Replied: 11/2/2011

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They have to prove that you were attempting to operate the vehicle. It's a factual question for a jury to decide. You have a very limited time to file your notice of appeal. Contact a DUI lawyer immediately. It sounds like you have a triable and potentially winnable case. Hopefully, your case was in a city court or before the magistrate judge. In those situations you typically have de novo appeal rights.

Answer Applies to: Kansas
Replied: 11/2/2011

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The circumstances are clear. For a conviction they Government must show: 1. Driving 2. A vehicle 3. On roadway 4. While impaired. All four elements must be proven.

Answer Applies to: California
Replied: 11/2/2011

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You have been to trial and found guilty? Here is the problem you faced: a cop who doctored the evidence so that he found you behind the wheel with the keys in the ignition. At least, that is what it sounds like to me. If you had eyewitnesses who testified at your trial, things might have turned out far differently for you. It is basically your word against a cop's word, and in the VAST majotiry of cases, the trier of fact will side with the officer. Can you appeal?You have 30 days from entry of sentence to file as notice of appeal. I can tell you that the appellate procedure is lengthy and expensive, and in the vast majority of cases your appeal will be denied, unless you establish that the trial judge grossly abused his discretion, which is almost impossible to do in a one on one case, with a police officer involved.

Answer Applies to: Illinois
Replied: 11/2/2011

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The fact of an arrest is not a conviction. If you have not been to court and told the judicial officer that you were guilty, you have not been convicted of anything. If that is the scenario, hire an attorney. If you went to court and pled guilty without an attorney and it is less thn six months, hire an attorney to see if you can withdraw your plea. If you went to court with an attorney and pled guilty, talk to your attorney.

Answer Applies to: California
Replied: 11/2/2011

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If you weren't driving, you're not guilty. The police can still charge you, and it's possible a jury will conclude you were driving, but you have good chances at trial.

Answer Applies to: Oregon
Replied: 11/2/2011

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Fight it. The D in DUI stands for Driving. The State needs to prove that you were driving.

Answer Applies to: California
Replied: 11/2/2011

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Your terminology is a little jumbled - you're asking about being charged, then asking about appealing. Appeals occur after a conviction. I assume from your question that you were arrested, possibly charged (or the case is set for a court date in the near future), but you have not been convicted yet. First - you only have 10 days from the date of your arrest to request a hearing with the DMV to challenge the automatic suspension of your license. Next - they have to prove driving for a DUI. Can they do that circumstantially? Yes, but it may be difficult if not impossible for them in your case. Your attorney (yes, you absolutely need one) can sort through the reports and analyze your case fully - well beyond what can happen here on the internet.

Answer Applies to: California
Replied: 11/2/2011

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It sounds like you have a lot of potential defenses. Don't let someone plead you out. Hire an attorney who can fight this case for you. Since you have been charged you also need someone who will fight for your license. Get a free consultation ASAP and retain an attorney who will fight for you.

Answer Applies to: Hawaii
Replied: 11/2/2011

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They must be able to prove you actually drove the car AFTER drinking to have a case against you. By driving, I mean actual volitional movement of the vehicle, not just keys in the ignition and car started. As for the chemical test, the police must have 2 completed breath samples under California law. So there is nothing unusual about the test from the fact you did it twice. You need to contact a lawyer that focuses on DUI law right away. You have only 10 days from the date of your arrest to contact the DMV to request a hearing.

Answer Applies to: California
Replied: 11/2/2011

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You need to have an experienced DUI attorney review the police report and lab results before you agree to plead to anything. There may be errors that could get the charges reduced or dismissed. They would have to prove beyond a reasonable doubt that you were driving (or it could be reasonably inferred that you had been driving) a motor vehicle on a public roadway while intoxicated. A DUI attorney is a good investment and will more than pay for himself in what he can save you.

Answer Applies to: Michigan
Replied: 11/2/2011

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That is a fact pattern I would definitely recommend contesting! I recommend that you hire a good attorney to fight the issue of whether or not you were in "actual physical control of a motor vehicle." Good luck!

Answer Applies to: Utah
Replied: 11/2/2011

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The answer depends on two issues. The first issue was where were the car keys. The second questions is where you parked. If you had access to the keys and you were not safely off the roadway, you can be guilty of Actual Physical Control of a motor vehicle while under the influence of alcohol-the same as a DUI.

Answer Applies to: Washington
Replied: 11/2/2011

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Are you interested in fighting the DUI or appealing a conviction? If you've already pled and accepted a deal, that's a whole other story. If you have not yet entered a plea, you should contact an attorney immediately because it sounds like there could be some big issues here. Normally, to be guilty of DUI, the prosecution must show that you were 1) driving a vehicle, and 2) drunk at the time that you were driving. It's not necessarily a crime to sleep in a vehicle while drunk, but you'd still probably be taken to jail for your own safety and the safety of everyone else on the road. This doesn't necessarily mean that you'll be convicted of DUI (or even charged with DUI for that matter). If, based on your statements and other evidence, it can be shown that you were drunk WHILE DRIVING, you could be charged with and convicted of a DUI. If, for example, you were parked some distance from a bar and you told the officer that you'd been drinking at the bar and you pulled over to take a nap, you're going to have an up-hill fight. It's not an issue that you took the breath test twice. Police always administer the test at least twice to ensure accuracy. If the two readings differ from each other by more than 0.02%, you'll be asked to take a third test (and possibly a fourth, etc.) until they get two readings that are close to each other.

Answer Applies to: California
Replied: 11/2/2011

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Based on the facts represented you are not guilty of OUI. You were not operating the vehicle. What you blew on the breath test is not relevant if you were not operating a motor vehicle. The issue is not whether you were intoxicated it is whether you were operating a motor vehicle. You should hire an experienced attorney who knows how to defend OUI cases.

Answer Applies to: Massachusetts
Replied: 11/2/2011

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