What Happens When a Driver and Passenger Switch Seats in a DUI?

Getting pulled over for a DUI can be scary for both the driver and any passengers in the car. Emotions run high, and people don’t always make the best decisions in the heat of the moment. Sometimes, the driver and passenger may attempt to switch seats to avoid a DUI charge. But what actually happens legally if you switch seats with the drunk driver?

Well, the short answer is – it’s not a good idea. Attempting to switch seats probably won’t work, and can actually land both people in hot water. Let’s break it down.

Can the passenger get a DUI?

Generally, no – the passenger cannot get a DUI simply for being in the vehicle with a drunk driver. DUI laws specifically prohibit operating a vehicle while impaired, not merely riding in one. So if you’re just a passenger, you haven’t broken any DUI laws [3].

However, there are some exceptions. If the passenger also appears intoxicated, they could potentially be charged with public intoxication. And in some cases, officers may mistakenly believe the passenger was actually driving. Let’s explore those in more detail.

Public Intoxication

If the passenger is visibly drunk or high, they could be charged with public intoxication – even if they weren’t driving. Slurred speech, bloodshot eyes, or the smell of alcohol can provide enough evidence for this charge. So while the passenger avoids a DUI, they aren’t off the hook completely.

Misidentification

In some cases, officers may incorrectly assume the passenger was driving. This can happen if:

• The driver and passenger switch seats after an accident
• Witness statements contradict who was driving
• Injuries or car seat positioning indicate the passenger was really the driver

If evidence suggests the passenger was actually operating the vehicle, they could still be arrested for DUI [4]. So while simply being a passenger doesn’t warrant a DUI, misleading the police about who was driving definitely can.

Can the driver avoid a DUI by switching seats?

Probably not. Experienced officers are usually able to determine who was actually driving the vehicle. Here are some ways police can establish the driver’s identity:

• Questioning both individuals at the scene
• Looking for keys, cell phones, or other personal items on the driver’s side
• Matching injuries and clothing damage to each person
• Location of drinks, bottles, or cans in the vehicle
• Witness statements from other motorists

With all these investigative techniques, it’s pretty difficult for the driver to deny being behind the wheel. At best, their switcheroo buys them a bit more time before eventually being arrested anyway. And now they face additional charges for obstruction of justice or providing false information [2].

What should the passenger do during all this?

As the passenger, you have a few options if your driver gets pulled over and tries to pin it on you:

1. Be honest. Cooperate with police and make it clear you were not driving. As we covered, you likely won’t be charged with a DUI simply for being in the vehicle.
2. Don’t try to help the driver evade charges. Obstruction of justice is a serious crime.
3. Call a taxi or rideshare. If you aren’t impaired yourself, ask the officer if you can leave the scene safely.
4. Contact an attorney. Both you and the driver have legal rights in this situation.

While it’s tempting to try and protect your friend or family member, it’s usually best to be upfront with law enforcement. Getting involved in their charade can backfire badly and leave you with your own criminal charges!

What are the penalties if you do switch seats?

Trying to pull a fast one on the cops by switching seats comes with some hefty consequences if you get caught. Let’s look at what the driver and passenger each face:

For the driver:

• DUI charges
• Additional charges for providing false information
• Increased fines and license suspension
• Possible jail time for obstruction of justice

For the passenger:

• Public intoxication charges if impaired
• Obstruction of justice charges
• Fines and possible jail time

As you can see, it’s really not worth the risk just to try and pull one over on the cops. And with dash cams and body cams becoming more prevalent, the chances of it actually working are slim to none.

What if you weren’t in the car at all?

An interesting scenario is when the driver’s friend or relative shows up after the traffic stop. They may claim they were driving originally, not the intoxicated person currently dealing with police. This tactic sometimes works better since officers have less concrete evidence about who was actually driving.

If successful, the friend or relative gets the DUI while the real drunk driver goes free. Of course, this is still illegal. But desperate people make desperate decisions sometimes when faced with serious DUI penalties. It’s a morally and legally questionable strategy, yet it does occasionally happen.

The Bottom Line

Switching seats with your drunk driver accomplice may seem like a clever ploy in the moment. But it rarely works out well. Officers are trained to identify the real driver, and you’ll end up facing additional charges. The best move is to cooperate fully while exercising your legal rights. And if you weren’t driving, be honest about your role as soon as possible.

Getting arrested for DUI can be an ordeal, but trying to outfox the police only makes things worse. Face the situation head-on, keep your wits about you, and let your attorney handle the rest. With the right legal strategy, you can mitigate the penalties and get the fairest resolution.