Operating or Attempting to Operate: Can I Really Be Charged with a DUI if I’m Not Driving?

16 April 2013 | 6:23PM

More often than you might think, I get a call from someone who has been arrested for DUI even though he was not driving. In Kansas, you can be charged with DUI for operating or attempting to operate a vehicle. Operating a vehicle under the influence means driving — it requires actual movement of the vehicle.  But attempting to operate does not.  Prosecutors routinely file charges of DUI against people who encounter police when sitting in the driver’s seat of a parked car.

Fortunately, there is a defense to these cases.  A defendant is not guilty if he did not recently drive and park the vehicle, and had no intention of driving away.  The prosecution will have the burden of proving beyond any reasonable doubt that the defendant either recently parked the car or was about to drive away.  If a jury believes that there is a reasonable possibility that the person was in the driver’s seat of the car for some reason other than to drive the car, a not-guilty verdict is required.

If you have been charged with DUI, call the lawyers of the DUI Defense Team in our Wichita office (316-262-9393), Topeka office (7885-234-3272), or Lawrence office (785-856-0143).

By Chris Joseph

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