Intoxicated, But Not in the Driver’s Seat: Can You Be Convicted of DUI?

Must you be found in the driver’s seat by police to be arrested, and later convicted of DUI? The Superior Court of Pennsylvania recently said “no.”

Mere Presence

In Commonwealth v. Petros, a Hyundai Santa Fe was observed parked perpendicular to the road. The headlights were on, the vehicle was running, the keys were in the ignition, and the front and back wheels were off of the roadway, with the back wheels in a ditch parallel to the roadway. Chad Edward Petros was situated near the vehicle and had a key for it in his pocket in addition to the key in the vehicle’s ignition. No other individual was located in the area.

Petros was arrested and charged with DUI. The trial court had not trouble determining that he was “highly intoxicated,” which he essentially conceded, and the court convicted him.

Petros appealed to the Superior Court, arguing that he did not have physical control of the car when police investigated, and his presence 30 to 50 feet north of the opened passenger door was not enough proof beyond a reasonable doubt to convict him of DUI.

On Appeal

In affirming the lower court’s ruling, the Superior Court addressed two aspects of Pennsylvania law. First, it noted that the law is clear that the evidence established at trial does not have to preclude every possibility of innocence. Second, it noted that Pennsylvania’s DUI law provides that an individual who imbibes alcohol may not be “in actual physical control of the movement of a vehicle” if he/she is rendered incapable of doing so safely.

The court went on to reason that there was sufficient circumstantial evidence to support that Petros’ DUI conviction was established beyond a reasonable doubt:

(1) “the motor running”; (2) “the location of the vehicle” was “perpendicular to a roadway” with “the back and front wheels … off of the roadway”; and (3) “additional evidence showing that the defendant had driven the vehicle” included (a) Appellant’s possession of a key to the automobile, and (b) the absence of anyone else who could have been the driver.


Unfortunately for Petros, his DUI conviction will stand. The takeaway here is that circumstantial evidence of actual physical control of a vehicle is all that is needed to sustain a DUI conviction. If you have been drinking, it is best to give the car keys to a designated driver.

As always, if you are facing a DUI charge, we recommend that you consult with a qualified DUI attorney immediately to ensure that your legal rights are protected and that you exercise all available defenses.