LOUISVILLE, Ky., (WDRB) – A woman in the vehicle with University of Kentucky basketball player Derek Willis when he was arrested early Saturday in Boone County told police she was not sure where the two were or “how they got there,” according to a police citation.

Keely Potts, 21, was sitting in the passenger seat while Willis was lying on the ground just outside the driver's door when police found them in the middle of the road on Mountain Laurel Way, near Rice Pike, in Union, Kentucky, just before 4:30 a.m. on Saturday. 

Potts, who has been described as Willis’ girlfriend in media reports, told police she “had a whole lot to drink” and didn’t know where she was, according to her arrest citation.

Both Potts and Willis were arrested on a misdemeanor charge of alcohol intoxication in a public place.

But some have questioned why Willis was not charged with driving under the influence.

According to the arrest report, Willis was so intoxicated he was unconscious, and an officer had to wake him up. He allegedly told authorities he'd had "a lot" to drink, and had no idea where he was, beyond being in "northern Kentucky."

“My first thought when I read about it, was ‘Why didn’t they charge him with DUI?'” said Louisville attorney Paul Gold, who is well-known for handling drunken driving cases. “We have someone sleeping on the road outside the car.”

Major Tom Scheben, a spokesperson for the Boone County Sheriff's Department, said in an email that "Willis was lying in the street, thus no evidence whatsoever he was driving. No breathalyzer…no need. There was no mention of anyone else in or around the vehicle."

When asked about Potts, Scheben checked and confirmed she was with Willis. 

Lexington Attorney Fred Peters said police likely could have charged with Willis but "probably gave him a huge break. It's a judgment call, depends on the circumstances."

Another well-known DUI attorney, John Harralson, said sometimes officers will charge DUI in these types of cases and sometimes they don’t, depending on whether they have doubts on whether “they can prove operation.”

But Harralson said the charges could be amended to DUI later if prosecutors review the case and believe there is enough evidence.

A call to the Boone County Attorney’s Office was not immediately returned. The two will be arraigned on June 24.

Louisville attorney Brian Butler, a former prosecutor, said because there were at least two people in the vehicle, it would be hard to prove who was driving, unless there was a confession. 

"There is certainly a possibility, given the scenario, that he was in the back seat of the car" and someone else had been driving, Butler said. “How do you determine who drove the vehicle?”

While there is no mention of who drove, if either, in the arrest citations, Harralson said conversations the two had with police could have been captured on dash cameras or body cameras, which could be used as evidence.

Peters said the sheriff's department likely would have asked Willis if he was driving or not and the conversation should be on video. 

Potts' citation indicated there was an "in-car video." But Willis' did not. Scheben did not immediately respond as to whether there was a video for both. 

Several defense attorneys pointed out that DUI cases where someone is found passed out or asleep behind or near the wheel while legally drunk are often dismissed because the driver did not physically have control of the vehicle.

In 1991, legislators amended the DUI statute by adding language prohibiting the “physical control of a motor vehicle” while under the influence.

A 1986 appeals court ruling lists four factors to consider in these types of cases: whether the suspect in the vehicle was asleep or awake; whether the vehicle's engine was running; the vehicle's location and how the vehicle arrived there; and the intent of the person behind the wheel.

Some judges have ruled it is impossible to determine what someone’s intention was when they are passed out or asleep behind the wheel.

However, prosecutors have argued that Supreme Court rulings have found judges can look at circumstantial evidence and the reasonable inferences made from it, according to court records

And that argument has been successful at times in higher courts. In a Jessamine County case, for example, a woman whom police found arguing with people while outside her vehicle in a parking lot, was charged with DUI after witnesses said she had been in her SUV getting ready to back up before she got into an argument and climbed out.

While the woman's attorneys argued she had no physical control of the vehicle when she was arrested and had simply turned on the SUV with her remote keyless entry device, the Court of Appeals ruled in 2009 that witnesses saw her brake lights on for several minutes and that she was intending to drive.

In the Willis case, Gold said “it would be an extremely difficult case for the prosecution to make, to prove operation of the car while the individual is not physically inside the car and is sleeping on the ground. “

And since the Boone County Sheriff’s Department didn't Willis a Breathalyzer test, the case would be even harder to prove.

“It’s next to impossible to convict under these circumstances,” Gold said. “No one will know what his alcohol level was with no breath test.”

Harralson acknowledged the lack of a Breathalyzer would be a factor, but said prosecutors could work around it.

“You have to look at the overall circumstances,” Harralson said. “How else would the vehicle have gotten to this particular location if not driven there?”

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