The following question was posted today on Avvo.com (see the full question here):
...[M]y car broke down on the side of the [freeway.] ...[M]y friend who was the driver asked that I stay in the car while he runs off ... to the nearest gas station ... . As I waited for him to return with some help [an] officer pulls up ... . The officer asks me out of the car and begins giving me DUI tests[.] [T]he officer had me blow into the [breathalyzer.][I] blew 0.04 and then he said "[Let's] do it again for about 3 to 4 more times and so [I] did and then he cuffs me and takes me to jail on a DUI. ... I wasn't driving at all period[.] ... [H]ow do I get a [DUI] in [a vehicle] that is broken down[?] [...]
This was my answer:
... [T]here is a legal basis for the officer(s) to conduct a DUI investigation regardless of whether you were observed driving. It happens all the time. For example, a lot of cases stem from drunk drivers who've pulled over to sleep it off on the side of the road. In those cases, it's perfectly legal for an officer to contact the driver to check on his or her welfare. Once the officer witnesses circumstantial evidence that the person may have been driving under the influence (e.g., the engine hood is warm, the car and/or person sleeping smell heavily of booze, keys are in the ignition, there's no one else there, etc.), at that point the officer has a valid reason to conduct a DUI investigation.
That being said, having the legal authority to conduct a DUI investigation and, for that matter, arrest someone for DUI is [a] much lesser burden for a DA to establish than actually proving his or his case at trial. Here, under the facts you've provided, you have a very good defense--namely, that you were NOT the driver. To prove you were driving under the influence that night, the DA will have to prove, beyond reasonable doubt, that you were the driver, which sounds like it will be challenging here since there are no witnesses to you driving. It doesn't matter whether you a .04 or a .40; with no witnesses to driving and assuming you didn't admit to driving, you have a good case. As a brief aside, the fact that you were .04 does not invalidate a DUI arrest. If there's evidence that you may have been above .08 at the time of driving, or potentially had drugs in your system, an officer can arrest you for DUI.
With respect to whether you need a DUI attorney who also specializes in civil rights cases, I respectfully disagree [with the other lawyers who've told you that a civil rights lawyer is needed in your case]. Here, even if the officer improperly required you to submit to the breathalyzer or in a manner that violated procedure, I don't believe that rose to a level to establish a cause of action for a civil rights violation in a separate civil case. Of course, if the officer made some mistakes, which it sounds like he may have, that would further aid you in your defense (of your criminal DUI case).