To be found guilty of “driving while intoxicated” in a Missouri DUI / DWI case, the defendant must actually be found to have been “driving” or “operating” the vehicle, otherwise, it is a mere case of at worst public intoxication or possibly minor in possession if the driver is under 21 years of age.

However, you can be deemed to have been driving or operating a vehicle in a Missouri DUI / DWI case in ways you may not expect. Driving or operation under Section 577.001.1 means physically driving or operating a motor vehicle.

One common area of challenge that can be raised in your Missouri DUI / DWI case is when the officer cites you for “being in actually physical control” of your vehicle, instead of “driving” or “operating” the vehicle. The “actual physical control” language was amended from the old Missouri DUI / DWI law, but some small jurisdictions still improperly use the old language in making Missouri DUI / DWI arrests.

What constitutes “driving” or “operation”? This would appear to be simple, but can be complicated in some cases. You should be aware that many Missouri courts will go to great lengths to find that you were in fact driving or operating a vehicle where no officer (or in some cases anyone else for that matter) actually saw you drive or operate your vehicle.

This issue is simple where the officer actually observes you driving prior to the DUI / DWI arrest. You should be aware that you can often be found to be driving or operating through circumstantial evidence even where the officer does not actually see it with his or her own eyes. This is especially true in accident cases, or through evidence of other witnesses observing your driving.

As discussed elsewhere in this cite, there are two separate cases within a Missouri DUI / DWI case—the civil hearing where you can get your license suspended, and the criminal case where the State of Missouri (or whatever city or jurisdiction you are in) is attempting to fine you and/or incarcerate you for the crime of DUI / DWI.

If testimony of other witnesses or circumstantial evidence is relied upon to prove you were driving the vehicle where no officer actually observed it, your driving or operation must be proven beyond a reasonable doubt in the criminal case, and by a preponderance of the evidence in the civil case.

It would be important here to emphasize as it has been emphasized throughout the materials in this cite that you have a Constitutional right to exercise your Fifth Amendment rights and remain silent— Exercise them!

Your admissions to driving alone are enough to establish the elements of driving or operation against in a Missouri DUI / DWI proceedings. At least 80% of the cases that come into our office which have good facts for challenging whether or not driving or operation can be established are short-circuited by the client admitting to the driving.

As discussed elsewhere, when you are pulled over, you have to: provide your license and proof of insurance, get out of the car and maybe be frisked for officer safety, sit in the officer's car while he runs your information, and that is it! You do not have to answer any questions asked or give in and perform ANY field sobriety tests. You have the right to remain silent—use it.

When confronted with any questions about where you have been, if you have been drinking, if you were driving, etc. say you want to speak with your attorney and then do not say anything else.

If you do not admit to driving in a Missouri DUI / DWI case, you can often win your case on the driving / operation of the vehicle issue, because the officer must establish probable cause for him to reasonably you were driving prior to arrest.

It is important that you understand that while he must show that he had a reasonable belief that you were driving prior to arrest, he can establish this by information he obtains at any time during the encounter (so you must be diligent and not give him information later that he can later bootstrap to show probable cause for driving).

You should also be aware that while the issue of whether you were actually driving appears somewhat obvious, whether established through you admitting it, through the officer seeing it, someone else seeing it, or through circumstantial evidence, you lose this part of the case by a mere showing of “operation” of the vehicle.

There is a large body of cases dealing with operation of a vehicle as opposed to actual driving. If it can be shown that you merely turned on a vehicle on engaged the machinery, you lose this element. It does not have to be shown that the car actually moved.

Common Driver Mistakes where the driving or operation element of a DUI / DWI offense can be established against you:

•  If you are asleep in a parked vehicle that is running in park (you caused it to function)

•  Same facts with the parked vehicle turned off but you admit to operating it where it cannot be proved without your statement.Cox v. Director of Revenue, 98 S.W.3d 548 ( Mo. banc 2003);

Even if in your Missouri DUI / DWI case the vehicle is not running, you can still be deemed to be operating if the circumstantial evidence is strong enough, such as where there is no reasonable explanation for where you are at other than you drove there.

In this context, the circumstantial evidence must be strong enough to exclude all other possibilities than that you were operating. If in a case where the engine is not running you can show a rational explanation of why you were where you were other than that you drove there, you might be able to win this issue.

The more rational the alternative to you driving being the cause of why you were where you were, the more likely you are to overcome the circumstantial evidence of your operation.

The biggest factors for this issue is whether the driver is alone or with other people, and the amount of time that has passed since the alleged operation.

There are numerous cases where the driving is found to have been operating a vehicle even with the engine off where he is in a remote location by himself.

There are also other cases on the same facts where operation could not be established because the driver was not by himself, giving reasonable alternatives to whether or not he was operating. Similarly, the more time that passes between when the officer arrives on the scene and when the alleged operation occurs, the more likely you are to have a valid alternative explanation for your operating the vehicle.

If you have not operated your car in front of an officer (it is not running) you can sometimes win your case even if you are behind the wheel.

Again, you have the right to remain silent! Use it… This does mean that I am advocating lying to the officer, but I am advocating not making his case for him where an element of the case against you cannot be made without your admissions which you have a Constitutional right not to make. Don't lie. It never helps you. Just don't talk at all, other than to ask to speak with your attorney.

You should also be aware of the little-utilized “90-Minute Rule” in Missouri DUI / DWI cases. RSMo. 577.039 generally states that an officer can make a valid DWI arrest without a warrant, even where the operation or driving does not occur in his presence, if it is made within 90 minutes of when the violation allegedly occurred, UNLESS the alleged driver left the scene of an accident or if driver was removed from the scene of an accident for medical treatment, in which case the arrest can be made after 90 minutes.

If your DUI / DWI arrest was made without a warrant more than 90 minutes after you allegedly were operating a vehicle, and you were not involved in an accident, the 90-minute rule is a good affirmative defense to utilize in your Missouri DUI / DWI case. (Note: this 90-minute rule only applies to criminal cases and cannot be used in the civil case where the Missouri Director of Revenue is attempting to take your license).

It is also important to note that in cases with an operation issue, the driving / operation element goes hand in hand with the intoxication element. You cannot have one without the other and find you guilty.

So even in cases where operation can be established, even where the car is not running, it must be shown you were intoxicated at the time of driving or operation.

Even if you are found to be operating and there is intoxication at some point, it must be shown intoxication occurred while driving and that you did not become intoxicated after the time you were driving/operating your vehicle.

For a final note on the issue of driving / operation—if you are just now reading this after you have been arrested and you did admit to driving where it might have been difficult to establish you were driving or operating your vehicle without the admission, there is one last rule that might help you: the “corpus delicti” rule, although like the 90-minute rule, this only applies to criminal proceedings and cannot help you keep your driver's license from being suspended in the civil portion of your Missouri DUI / DWI case.

For the corpus delicti, there must be direct or circumstantial proof of driving while intoxicated other than the driver's own admissions for the admissions to be used against him.

However, if the independent grounds exist, your admissions will be used against you. While this rule can be sometimes helpful, you must not rely on it to any great extent, and understand that there really is a DUI Exception to The Constitution.

Courts will go to great lengths to find independent grounds for driving while intoxicated offenses on the thinnest of circumstantial evidence to justify the end result of your admissions of driving while intoxicated coming into evidence to be used against you.