A typical Rochester DWI arrest involves a member of law enforcement claiming to have personally observed one or more moving infractions committed by the defendant, leading the police officer to pull over the defendant and investigate him or her on suspicion of drinking and driving.

While there is no requirement that the police officer actually have directly observed the defendant driving, cases where the officer did not observe any driving can be much more difficult to prove.

This is because all drinking and driving offenses require the prosecution to establish that the defendant was under the influence of the alcohol at the time he or she was operating a motor vehicle.

There are cases where, for example, a private citizen calls the police with the license plate number of a vehicle that is being operated erratically, but the driver has ceased operating the car by the time the police locate and stop him or her.

While the police may still make an arrest, the fact that the police did not observe the driving can pose several problems.

First, it may be more difficult to establish that the defendant was the actual operator of the vehicle.

Even in cases where the person who reported the erratic driving is willing to come to court and testify, if that person did not have a clear view of who was operating the car and the defendant is out of the vehicle when the police arrive, it may be difficult to prove that the defendant actually drove.

Also, the law requires proof that the defendant’s intoxication and driving occurred at the same time.

When a driver has, for example, returned home before the police arrive, it may be difficult to prove that the driver did not consume alcohol after arriving back home.

Following an arrest for drinking and driving, it is important to have an experienced DWI lawyer who will evaluate all of the evidence against you.Call us at 585-484-7432.