Arrested in Your Home for DUI: Must You Be Stopped while Driving to Be Convicted?

When most people think about being arrested for DUI they envision flashing police lights and sobriety tests at the side of the road. But what happens when you are arrested at your home, roused from your bed, without police ever having seen you in the driver’s seat operating a motor vehicle? Can there be sufficient evidence to support a DUI conviction?

The Superior Court of Pennsylvania recently said “yes.”

Woman in Roadway

In Commonwealth v. Anthony, troopers received a radio dispatch that a woman was lying in the middle of a roadway screaming. When they arrived at the scene at about 3:20 a.m. they discovered the woman with abrasions, swelling under her eye and chin, a torn shirt, and cuts to her knees and elbows that appeared to be from striking the pavement. She told the troopers that her boyfriend, with whom she was with that evening, threw her out of his truck.

After transporting the woman to the hospital, the troopers proceeded to the boyfriend’s residence. When he answered his door, he had apparently been woken up. He had bloodshot, glassy eyes and a strong odor of alcohol. He told the troopers that he had been arguing with his girlfriend and threw her out of his truck without shoes or extra clothes. He admitted to drinking beer that night.

The troopers arrested the boyfriend for assault and suspicion of DUI. When they checked his record, they discovered that his license had been suspended for a prior DUI conviction. The boyfriend underwent a post-arrest breathalyzer test at 5:22 a.m. that yielded a blood-alcohol content (BAC) of .132 percent.

The boyfriend was charged with, and later convicted of, several DUI crimes, including DUI―general impairment. He appealed, arguing that there was insufficient evidence to support his conviction because he had submitted to the breathalyzer test two hours after he allegedly drove his vehicle and had ample time to consume alcohol in the interim.

DUI Statute

Pennsylvania Vehicle Code §3802(a)(1) provides that “an individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.”

In contrast to other subsections of the statute, all of which require that the offender’s blood alcohol level reach a certain specified elevation within two hours of driving, there is no time element explicitly delineated in §3802(a)(1). However, case law recognizes that to avoid absurd applications of §3802(a)(1), a time element must be inferred. The relevant time period is “that span of time during which an individual is incapable of safely driving due to alcohol intoxication.”

On Appeal

Here, the Superior Court of Pennsylvania found that there was sufficient evidence to sustain the boyfriend’s DUI conviction. The evidence relied upon by the court included:

(1) [The boyfriend’s] admission that he had been drinking “that night” or “that evening” at his cousin’s house; (2) [The girlfriend’s] statement to the troopers that she had been with [the boyfriend] and had been thrown out of a truck; (3) [The boyfriend’s] admission that he had an argument with [the girlfriend] that escalated to the point where he threw [the girlfriend] out of his truck during the drive home, conduct which suggests substantial intoxication and impaired judgment, (4) [The boyfriend’s] groggy demeanor, his bloodshot, glassy eyes, and his strong odor of alcohol when the troopers arrived at his house at 5:00 a.m., approximately two hours after he stopped driving, and (5) [The boyfriend’s] BAC of .132% at 5:22 a.m., a level substantially above the legal limit of .08%.

The court further found that the Commonwealth was not required to relate the BAC at 5:22 a.m. back to when the boyfriend last drove at around 3:00 a.m. The court stated:

Instead, as fact-finder, the trial court had the authority to view the BAC in conjunction with the other evidence and accord the BAC whatever weight it found appropriate. Nor did the Commonwealth have the burden of proving that [the boyfriend] did not drink after he stopped driving. It only had to prove that at the time of driving, [the boyfriend] was incapable of driving safely due to consumption of alcohol. Construed in the light most favorable to the Commonwealth, the evidence demonstrates that the Commonwealth met this burden.


Unfortunately for the boyfriend, his DUI conviction will stand. The takeaway here is clear: A driver need not be stopped while driving to be convicted of a DUI. If you have been drinking, it is best to not get behind the wheel.

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.