Can you be charged with DUI without evidence?

Prosecutors typically have to have some type of evidence of impaired driving before they can file charges against a person for driving under the influence (DUI). This is because prosecutors can only secure a DUI conviction by showing evidence that a person drove or was in control of a motor vehicle while impaired or with a blood alcohol concentration (BAC) above a certain legal limit (for example, at or above .08% in most states). Further, prosecutors must show enough evidence, for a conviction, to convince a judge or jury beyond a reasonable doubt that a driver was guilty of DUI.

Some common types of evidence that a prosecutor may use to help prove DUI include:

• testimony from an arresting officer,
• breath test results and/or blood test results,
• results from field sobriety tests (which typically includes results from a horizontal gaze nystagmus test), and
• open containers of alcohol in a defendant’s vehicle.

If a prosecutor is able to convict a defendant of DUI, then the person may face such penalties as:

• jail time,
• a driver’s license suspension,
• community service,
• misdemeanor probation,
• fines, and
• completion of alcohol counseling or a DUI school.

1. Can you face DUI charges with no evidence of drunk driving?

DUI cases usually have to have some type of underlying evidence of drunk driving before a prosecutor will file DUI charges.

Keep in mind that state DUI laws say that prosecutors can only convict a person of drunk driving if they successfully prove certain “elements of the crime.”

For example, under California law, a prosecutor has to prove the following elements before a DUI arrest will rise to a conviction:

• the defendant drove a vehicle, and
• when he/she drove, the defendant was under the influence of an alcoholic beverage, a drug, or an alcoholic beverage and a drug, or
• when he/she drove, the defendant’s blood-alcohol level was 0.08% or more by weight.¹

Note that a prosecutor must prove each of these elements with actual evidence, as opposed to mere assertions or uncorroborated claims. Further, there has to be enough evidence to convince a judge or jury, beyond a reasonable doubt, that a defendant was guilty of DUI/DWI.

2. What evidence can help prove a DUI charge?

When a prosecutor tries to prove a DUI case, he/she can use several types of evidence. Some of the most common types of DUI evidence include:

• an arresting officer’s report (which usually includes a police officer’s observations),
• breathalyzer test results, blood test results, or urine test results (to help show a driver’s blood alcohol content or BAC level),²
• statements that a defendant made to a law enforcement officer,
• an officer’s observations or opinions regarding field sobriety tests (or, FSTs), and
• open containers of alcohol in an accused’s vehicle.

3. Can you get charged for DUI without breath or blood test results?

Yes. People sometimes refuse to submit to a breath or blood test either before or after a DUI arrest.

In these cases, prosecutors can still file DUI charges, even without evidence of the driver’s blood-alcohol level. Prosecutors will just have to rely on other types of evidence to support their case.

For example, a prosecutor may rely on:

• field sobriety test results,
• an officer’s testimony that he/she spotted the defendant swerving,
• video evidence taken during the arrest, and/or
• any of the other evidence mentioned above.

Note that most state laws say that drivers who refuse a breath or blood test will face serious penalties for a chemical test refusal.

The major consequences of a chemical test refusal are:

• increased penalties in addition to the standard DUI penalties, and
• a mandatory driver’s license suspension that will occur regardless of the outcome in your DUI case.³

4. What are the common penalties for a DUI conviction?

If a prosecutor presents enough evidence of drunk driving to secure a DUI conviction, the defendant will face a series of potential penalties.

Common penalties for a DUI conviction include:

• jail time of up to six months,
• fines,
• increases in insurance rates,
• a driver’s license suspension, and
• completion of a DUI school.⁴

Given these penalties, people charged with DUI should contact an experienced criminal defense attorney or DUI defense attorney for help.

A skilled criminal defense lawyer or DUI lawyer can help a defendant raise a legal defense to contest any DUI charges that a prosecutor or state files.

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