There are certain situations where the driver will be held fully liable for endangering the passenger without holding the passenger responsible. The most common situation is when the passenger is a minor. Drunk drivers with underage passengers will likely face tougher penalties due to facing child endangerment charges as well as DUI charges.
Another possible situation is when the passenger is unable to drive—either by disability, lack of license, or lack of consciousness. For example, an injured, or mentally disabled passenger wouldn't be held responsible for allowing a drunk driver behind the wheel. An arresting officer may request a sobriety test, but it's rare that a reasonable officer would ask that of a passenger who was clearly not complicit in the driver's actions.
There are 4 situations in which a sober, adult passenger will be off the hook for the driver's DUI:
- You don't know how to drive
- You have no driver's license
- You are medically unable to drive
- You are legally restricted from driving
How to Know If You're Facing Potential Charges
If you are drunk, the arresting officer has two choices. They can let you go home (provided you find a ride home with a sober driver) or they can arrest you for public intoxication. Public intoxication is a misdemeanor in most states, with up to six months jail time or a $1000 fine. However, these charges are often reduced or dropped due to limited court resources—especially if you don't have a prior record of being drunk in public.
If you are sober—and your situation does not match any of the criteria listed above—you may be held equally responsible for the driver's crime. If you are found to be sober, the officer will ask you why you weren't driving the vehicle. Without a compelling reason, the officer may charge you with reckless endangerment. The reasoning is that by allowing a drunk driver behind the wheel, you endangered the driver and the public (similar to how a bar may be held responsible for a drunk driving accident in a civil case).
The 10 states with the harshest reckless endangerment penalties are:
- Colorado
- Arizona
- Delaware
- New Mexico
- Illinois
- Oregon
- Virginia
- Iowa
- Massachusetts
- Alabama
Fortunately for you, this is a broad interpretation of reckless endangerment statutes. This may not be an issue in states or courts where the law demands a stricter interpretation of "reckless endangerment." If the officers do not arrest you, you may be given permission to take your friend's car home or you'll be escorted home by a second police officer.
Passenger Issues in DUI Stops
As a passenger, you have the right to withhold identification from the officer unless you are being charged with a specific crime. Sometimes, this is ill-advised—even without an arrest, officers are free to detain you for as long as they need, provided they have probable cause. If the officer has reason to believe that there are drugs, weapons, or other illegal objects in the vehicle, you stop being a mere "passenger" at that point—you become a suspect.
If you provide your ID voluntarily, keep in mind that any prior arrests or charges, outstanding warrants, or unpaid tickets will appear on your record. Even if you are not guilty of DUI, it gives the arresting officer another reason to arrest you—so waive your rights with caution. The best approach is to ask the officer if you are free to leave the scene or if you are being charged with a crime. If the officer has no probable cause, he or she will be forced to let you go—and you're less at risk for saying something that results in your arrest.