By on May 10, 2010

State officials can punish an individual for driving under the influence of alcohol (DUI), even if they are unable to prove the accused was ever behind the wheel, the West Virginia Supreme Court ruled Thursday. The decision came in the case of Eric R. Cain who was found lying passed out on in front of his car on Route 19 by Marion County Sheriff’s Deputy Todd Cole at around 2:30am on June 2, 2007. The car had been safely parked and there was no key in the ignition.

Cole arrested Cain for DUI after a breath test estimated Cain’s blood alcohol level at .15. Six days later, the state filed an order revoking Cain’s driver’s license for a full year. In addition, Cain was ordered to pay a number of fees, including the costs an alcohol education program. Cain appealed the administrative order, and a Department of Motor Vehicles (DMV) employee found him guilty. Cain appealed that judgment to circuit court Judge David Janes who overturned the DMV decision because the state could not prove Cain did not get drunk after he parked his car. The high court disagreed with Janes, asserting that state law allows police officers to impose certain forms of punishment based solely on reasonable suspicion that a crime may have taken place.

“All that is required to seek a license revocation under West Virginia Code Section 17C-5A-2 is that the arresting officer have ‘reasonable grounds to believe’ that the defendant committed the offense of DUI,” Justice Thomas E. McHugh wrote for the court. “Rather than requiring an arresting officer to witness a motor vehicle in the process of being driven, the statute requires only that the observations of the arresting officer establish a reasonable basis for concluding that the defendant had operated a motor vehicle upon a public street in an intoxicated state.”

Judge Janes had ruled that the arresting officer was obligated to identify specific facts and evidence that give rise to a reasonable suspicion that a crime was committed. Cain did not testify in his own defense at the administrative hearing, leaving no direct evidence that Cain had been driving while drunk. The supreme court ruled that the burden was properly on Cain to prove his innocence.

“The record is devoid of any factual basis for the arresting officer to believe that Mr. Cain consumed the alcohol he acknowledged drinking only after he parked the vehicle,” Justice McHugh wrote. “The applicable burden of proof at a license revocation proceeding is ‘proof by a preponderance of the evidence.’ By citing the fact that Mr. Cain did not testify or present evidence on his behalf, the hearing examiner was not wrongly shifting the burden of proof to the appellee. Instead, the examiner was merely recognizing that the only evidence before him was the testimonial evidence of the arresting officer and the documentary evidence provided through the DUI Information sheet.”

The supreme court reversed the circuit court ruling. A copy of the decision is available in a 70k PDF file at the source link below.

Source: PDF File Cain v. West Virginia DMV (Supreme Court, State of West Virginia, 5/6/2010)


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37 Comments on “West Virginia Supreme Court: DUI Does Not Require Proof Of Driving...”

  • avatar

    I’m good with this, anyone with half way decend reasoning skills knows this guy drove drunk…too many people I know have been affecting by drunk driving to give ANY kind of leeway to people like this.

  • avatar

    I fully believe our DUI laws and enforcement are out of control. Drunk driving isn’t as horrible as people say.

    That being said, this post is a bit of a fail.

    The man wasn’t charged with a DUI in court. He had his license suspended by DMV on suspicion of drunk driving. That is why a lower level of proof was required. It isn’t a crime.

    Courts for 25 years have been edging the definition of “vehicle” and “control” up. Look up DUI cases against bicyclists, for instance. Or the hundred of cases involving actual DUIs where the car was not running. As long as you have the key that is enough.

    A year’s driving suspension is a harsh penalty for a administrative action.

    What would be more legally interesting is whether he could have refused to have given the police his license or take a blood test. That is an automatic suspension in most states, but that pre-supposes a crime had taken place, and there may not have been a crime (DUI) here.

    Or what if this was based on a photo, video, or facebook rambling. Would that level of proof be enough for an administrative action?

    But a drunk guy in the front seat? That is easy.

    • 0 avatar

      Drunk driving isn’t as horrible as people say.

      Define “horrible”. It causes more frequent and catastrophic accidents than any other cause (eg, distraction, mechanical failure, etc).

      You are, for example, far more likely to be killed by a drunk driver than by a rogue Toyota and it’s very high up the list of causes of death for those 18-25. I believe it’s the leading cause of death among motorcyclists, as well.

      And it’s entirely preventable.

  • avatar

    snabster – “I fully believe our DUI laws and enforcement are out of control. Drunk driving isn’t as horrible as people say.”

    National Highway Traffic Safety Administration statistics for CY2009

    •10,684 fatal accidents nationally where at least one driver had a BAC of 0.8% or above

    •11,773 people were killed nationally in accidents where at least one driver had a BAC of 0.8% or above

    •2,072 people were killed nationally in accidents where at least one driver had a BAC between 0.01% and 0.07%

    •13,846 total deaths were caused nationally where at least one driver had a BAC of 0.01% or above

    Yep, you are correct…….this isn’t near as horrible as people say. I guess I should tell that to my dead cousin’s wife. He was killed by a drunk driver who had a list of priors as long as my arm. If you drink and drive, you become a weapon capable of killing.

    • 0 avatar
      Jason Porter

      If you drink and drive, you become a weapon capable of killing.
      I’m not arguing against your general point, but about that last line… I’d say that all drivers are a “weapon capable of killing”, whether they’ve consumed alcohol or not.

      On a slightly different tack… Benadryl can be just as disorienting to a driver as significant alcohol intake, and is probably involved in an extremely significant number of fatal incidents, yet I don’t see it demonized by self-styled “prohibitionist” groups such as MADD. Is the political will about DUI really only about the deaths, or is the message equally focused on the “evils” of alcohol in general?

    • 0 avatar

      That is a fallacious argument. In none of the statistics that you cite does it say who was at fault for the accident.

      If I have a beer and some moke runs a red light and t-bones me, that is somehow my fault because I have BAC of .001, and had I not had that beer with dinner my jedi driving skills would have allowed me to sense a retard in the force?

      The real problem here is the erosion of the 4th and 5th amendments.

  • avatar

    i find it strange that throughout this, no mention was made if the car had actually moved


    was the car’s motor hot? did it seem like the car was recently driven?

    was the car sitting there overnight? surely the police officer would make note of this?

    isn’t this the most important thing? perhaps the guy staggered home drunk from the bar?

    • 0 avatar

      The driver had an opportunity to testify to any of those possibilities. He chose not to, and given that this was a civil proceeding that left the preponderance of evidence pointing to drinking and driving.

  • avatar

    Can anyone explain this bit to me?

    “The supreme court ruled that the burden was properly on Cain to prove his innocence.”

    Innocent until proven guilty…unless we want it to be otherwise?

    I’m confused.

    • 0 avatar

      Continue reading and you will see that this was not a criminal case, and the requirement was proof by a preponderence of the evidence. Once the state had presented their case as to why it was more likely than not that he had been driving drunk, it was up to Mr. Cain to present evidence that was more convincing that he had not been driving while drunk. If the officer noted that the engine was warm, I would say the state had a slam dunk case.

  • avatar

    Good for WV. He is still in control of that vehicle…regardless of where the key is. The key could have been in his pocket…the key could have been in the center console…one overt motion and he could have been driving.

    Plus, our DWI/DUI laws are not NEAR strict enough. If I were making the laws…you would get one chance. Your first DUI/DWI would be considered a freebie (assuming nobody else suffers great bodily harm or death). You would still be punished…but you would be able to get your license back.

    If you do it again…you lose your license for life.

    And frankly…that’s being too lenient.

    • 0 avatar

      Well then, let’s do the same for speeding. Doesn’t it kill, too? And then cell phones. And then eating behind the wheel. Then music. Then driving with sunglasses, without contacts/eyeglasses, absolutely anything.

      In fact, let’s follow your directive and chase the act of driving itself right out of the US! Let’s all drive “personal transportation pods” that automatically deliver us to our destination on computer-backed grids! Can you imagine the joy of future generations when they take deliver of their brand new Dell or HP PTP? I bet they can even program an automated car wash into the grid of a city’s center so we’ll never have to actively think about transportation again.

      On to other matters: as others have said, this was an administrative action and therefore was not subject to criminal proceedings or the interpretation of actual law therein. It’s unfortunate, but this guy, lost fair and square. Had this been a legal action, the facts of the case would not have been treated so flippantly. WV isn’t known for its particularly tough DUI laws, but there have been similar cases in other states wherein defendants were prosecuted successfully for resting in the front seat of a stationary, non-running vehicle while intoxicated.

    • 0 avatar

      Yeah…that’s exactly what we should do.


  • avatar

    “•13,846 total deaths were caused nationally where at least one driver had a BAC of 0.01% or above”
    And the sole reason is the BAC level? Hard to believe.

  • avatar

    I’m sorry, maybe it’s just my 100% irrational hatred of the police caused by Raleigh PD who have nothing to do, but I fail to see how this makes ANY sense.

    DUI = DRIVING while intoxicated. Not “passed out in front of the car” while intoxicated. That would indicate that he wasn’t driving, considering he’s PASSED OUT IN FRONT OF THE CAR. Now, DRIVING while intoxicated makes sense as a charge – you are posing a clear and present danger to yourself and everyone else on that road. But if you’re passed out in the front of the car, the danger is pretty much limited to, ehh, the handbrake failing and the car rolling over your drunk ass.

    This would be like getting a speeding ticket BECAUSE you have a 458 Italia. “Proof of speeding not necessary for a speeding ticket! Guilty until proven innocent! The burden of proving you WEREN’T going 170mph at some point lies in YOUR hands.” I’m sorry, that’s the opposite of logic, it’s dangerous thinking that’s turning the US into a nanny state where we’re protected from ourselves. And it’s just plain wrong. Guilty until proven innocent is NOT how the legal system in this country works. And anyone who commisserates because of how many drunk drivers kill people – you’d rather have your rights slowly taken from you one at a time? I’m sorry, this drives me nuts.

  • avatar
    Dr Strangelove

    The next logical step is to do away with the need to prove the drinking.

    If a police officer has reason to suspect that a person has been drinking and/or driving, that should be enough for a heavy term of imprisonment.

    Repeat offenders should be locked up for life.

  • avatar

    I think they forgot what the “D” stands for in “DUI”. Facists.

  • avatar

    Simply basing legal punishment on “reasonable grounds to believe” seems to fly in the face of “innocent until PROVEN guilty.”

    That same logic makes it perfectly acceptable to issue speeding tickets to those who own sports cars. Own a Porsche, Ferrari, Corvette, etc, and that’s sure fire “reasonable grounds to believe” that you have, at some point in the past, exceeded the posted speed limit. Ticket for you. Still own the car a week later? Another ticket. Repeat as necessary.

  • avatar


    This is not a DUI case despite what the title of the post might lead you to believe. His license was revoked because they found it was more likely than not that he had been driving drunk. They would have needed significantly more proof to throw him in jail for anything more than drunk in public.

    I am all for citizens’ rights and this case is certainly walking a fine line, but it is not a criminal case. To the person who says drunk driving isn’t that horrible, is it so horrible that we expect people to not drink and drive? My wife and I were planning on going to a movie after dinner Saturday night. I mistakenly thought she would drive so I had a second glass of wine after dinner. When it came time to leave, I asked her to drive. Unfortunately, she had drunk a pint of Imperial Stout (~9% alcohol if you’ve never had one); so, we did the unthinkable and just stayed home rather than drive while impaired. I would venture to guess that both of us would have still been more alert than 90% of the people on the road, and we probably could have gotten away with it. But, neither of us thought that getting to see this movie on Saturday night was worth the risk of driving while under the influence. That’s known as responsibility versus the selfishness that seems so common today.

  • avatar

    I wish they could do that where I live. I was having a smoke on my balcony and noticed something odd in the parking lot behind my building. The parking lot is dirt and parking lanes are separated by large 80 foot logs. One of the logs had been dragged out of place (they are held in by metal spikes) and was at a 90 degree angle. Following the path of destruction I saw a Toyota Tacoma hung up on another log, lights on, wipers going. I called the cops. Sure enough, there was a guy passed out in the drivers seat. The cops got him out and they were MAD. One of them noticed a headlight being out, so he hit it to see if it worked. Another found a beer bottle beside the truck, picked it up, swore at the driver and threw it…”accidentally” hitting the truck. Another yelled “Don’t speak ‘rap’ to me! This ain’t Los Angeles!” I heard another yelling “Give me a *beep* excuse to arrest you, you *beep*!” Finally, they told him to f-off and that his truck was getting impounded and LET HIM GO! I assume that because he was not caught driving, they could not arrest him. I asked one of the cops what happened and he said “Oh yeah, that guy is wasted”. If the destruction he caused in the parking lot does not obviously show he was driving than I don’t know what would…

    • 0 avatar

      A drunk teenager ran into (rather through) the fence around my Uncle’s yard, destroying a section of fence, several plants, a wide swath of lawn, and nearly missing a corner of the house (literally by inches). The driver and a passenger took off running, and the police did not arrive for over an hour to “investigate.” There were several empty and partial conrtainers of alcoholic beverages in the car as well as a purse with ID belonging to the car owner’s daughter. the police said that the car owners daughter showed evidence of being under the influence when they finally made there way over to the owner’s home. But, because they did nto catch the girl actually driving the vehicle they did not have grounds to arrest her. Soudn a little ridiculous? Hey she wasn’t caught driving the car while drunk, so she must be innocent, right?

  • avatar

    Presumption of innocence. Irrelevant as long as it’s some OTHER guy being railroaded.

    • 0 avatar

      What if, 30 feet behind the parked car with drunk inhabitant, there was a body of a person who had been run over? I would think that it’s perfectly logical for the police to assume that the drunk ran over someone, even if they did not see it happen, and arrest them for vehicular manslaughter. Police do it all the time. They don’t have to see a person shot someone to arrest them for murder, they just have to have reasonable grounds. The only point of contention with this article I have is the DMV dishing out the punishment. These charges should go to courts, not administrative branches of the government. If it went right to court first for an actual trial would there be a problem with that? In this case it did end up going to court and the guy did not show up to present a defence, so the court found him guilty. If you assault someone and don’t show up for a trial date, the court can prosecute you in absentia, which is exactly what happened here. I see no problem with that.

  • avatar
    Robert Schwartz

    Folks please read the article before you opine.

    … Eric R. Cain who was found lying passed out on [the ground] in front of his car on [the ground]… The car had been safely parked and there was no key in the ignition.

    I am sorry but I cannot make an inference that he was dui out of this alone, under any standard of evidence. TonyJZX makes reasonable suggestions as to possible additional facts. Another set of facts might be the location of Mr.Cain’s resting place in relation to places of entertainment or public houses.

    I have read Ohio cases where DUI was found on the basis of being asleep in the drivers seat, but I think that asleep near the car is a bridge too far even under a civil burden of proof. Further, I think that the finding sets a bad precedent. Being drunk is not being irrational or incapable of thought. We should want drivers to sleep it off rather than drive, and behavior like Mr. Cain’s should not be punished.

    • 0 avatar

      “We should want drivers to sleep it off rather than drive, and behaviour like Mr. Cain’s should not be punished.” But that could give drunks a license to drive drunk, park a block away from home, and “sleep it off” without consequence. I agree that passed out in your car outside the bar without having driven is one thing, but this guy drove to his sleepy place.

    • 0 avatar

      Once, several years ago, some friends and I drove out for a night on the town in Atlantic City. We took my car, and I drove us out. While there I had a few too many, and one of my friends who had abstained drove us back. On the way home I fell asleep in the back of my own car, and it being a temperate night, my friends left me in the back of my car to sleep it off.

      Had any policeman come by soon after they went inside he would have seen my car in a parking space in front of my apartment, with me sleeping in the back, and had he knocked, would have found I was intoxicated, and the only one in the car with a warm engine. Given that evidence he might have inferred that I had driven drunk, despite the fact that I didn’t.

      For any penalty under law, whether it civil or criminal, whether it be prison, a fine, or revocation of license, one should be innocent until proven guilty, and the supposed wrongdoing needs to be witnessed, not simply inferred.

  • avatar

    I am troubled by this case. If a cop finds me drunk on my own front porch, and there is a car in the drive with a warm engine, I can have my license revoked unless I produce the driver of the car? I can even offer an explanation to the cop (which this guy did not do), but if the cop doesn’t believe me I would still lose my license?

    • 0 avatar

      That is where the courts come into play. If you can’t or don’t (as in this case) offer a logical alternative explanation then the court may find tha the DMV has the right to revoke your license. IMO a valid argument people could make here is that a driver’s license is a right and not a priveledge. int hat scenario, the government would need to show beyond a reasonable doubt that the person was drivign while under the influence.

    • 0 avatar

      A driver’s license is a privilege, not a right.

    • 0 avatar


      That’s a statement not an argument or even a reason for your position.

      I’m not arguing one way or the other; it’s only the presupposition that a driver’s license is a priveledge that allows the DMV to meet a much lower standard of “more likely than not” versus guilt beyond a reasonable doubt. The court is saying that the DMV met this burden of proff based upon the officer’s testimony and the lack of any evidence from Mr. Cain’s side.

  • avatar

    While I think DUI people are stupid but…

    Guilty until proven innocent is such an amazing concept. We should do this more often in USA. Oh wait we ain’t facists sicko.

  • avatar

    Wait, WHAT?! No WAY that I am condoning drunk driving… but WHAT?! Dude is passed out in front of his car drunk. Key is not with him. He loses his license for a year. This is INSANITY! “The supreme court ruled that the burden was properly on Cain to prove his innocence.” I’m sorry… burden of proof is on the accused to prove innocence? I’m pretty sure that one is NOT in the constitution. You know what, I have been drunk in my own car when I was not driving (friends like to DD when they get to drive my car) and this case seems to indicate that I am guilty of a DUI every time that happened, unless I could PROVE that a friend drove my car, and then maybe got a ride with someone else. WTF!! WV Supreme Court: your state is already the butt of the entire country’s jokes… and now you have proven that even your Supreme Court is SUPREMELY STUPID. D.U.I. = DRIVING under the influence. Maybe if you backwards hicks knew how to read you’d have realized that “passed out drunk outside of the car” != “DRIVING THE CAR DRUNK.” Again… this is not about drunk driving. I’d never say that is excusable. But I have been in the situation this guy was in–getting driven in my own car, and then my DD gets picked up and I’m by myself. Well, I wasn’t passed out on the ground, but that is irrelevant. According to WV that means I committed a DUI. This is NOT ok and those IDIOTS on the Supre(mely Stupid) Court need to be thrown out. Rant over.

  • avatar

    I approached this with a bit of outrage, until I began to read the actual court filing…

    If you open the link and read even a few pages, you’ll see the guy was drunk and the officer arrived at the proper conclusion.

    The guy parked his car and was passed out. A concerned citizen called in to report someone was lying near the vehicle. When awakened by the officer, the guy had slurred speech and said he was just trying to get home. He was then tested and proved intoxicated. He had a prior DUI conviction in 2001. It’s not evident he was near an establishment where he consumed the alcohol.

    So yes, it’s reasonable to suspect he drove drunk. Is there absolute proof? No.

    That being said, I believe the State and the officer acted reasonably and within the limits of the law.

    I agree with other posters, those with designated drivers, or those who have been left to sleep in their vehicles, that they are innocent and if found by an officer, should not be charged with DUI. I would argue both the state and the officer would agree with us, if presented with this evidence. The reason the defendant offered nothing, is because he had nothing. His best defense was silence.

    It can be fashionable, and at times, comforting to yell Fascism. But I feel this is a poor example. The state and the officer operated well within the boundaries established by the laws, and were only doing what was necessary to protect the people from a drunk. Had this guy awakened, gotten into his car, and killed someone, we’d be shouting “Where were the police?”

  • avatar

    Still not sold on it. Many a cop has drawn a correct conclusion about a case before all the evidence is in, but still gathers more proof to make it stick. Just about everybody could be in agreement on this, but without the physical link of driver to vehicle, it’s still a weak case.

    And whatever the prevailing legal thinking might be, a driver’s license is a right, not a privilege, simply because if you qualify for one under a uniform set of rules, you cannot be denied. The only problem is that the states think this right can be taken away without sufficient due process of law. That’s wrong.

    It’s just like the right to vote. You have it, but there are qualifications that have to be met, such as age and residency. Once met, again you cannot be denied.

    Therefore, the right to drive should not be left up to administrative courts, but real ones with real standards of proof. I certainly hope a better legal mind trashes this decision.

  • avatar

    Well, you don’t have to be under the influence since they’ve lowered the threshold to .08 or even lower in many cases. So why should you need to have been driving?

  • avatar

    In Marion County West Virginia they love to give DUIs out. Cops there pull over anyone out between 2am and 4am to smell there breathe and ask them how much they been drinking they’ll say you were following too closely or riding the line whatever they have to to get you stopped. I’d been pulled over there during college at least 7 times in a semester. Finally they got me to blow over the legal limit cause I had literally one beer to many. Blew a .08. Cop said there is no tolerance in wv and hauled me off. So yeah a little out of control on that small college town they entrap you when you leave the bar and turn the corner. The prosecution even told me my case was petty and a waste of his time and agreed to my plea.

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