QUESTION
Does it make a difference if I was not driving when I was arrested for DUI?
Asked on Jun 29th, 2011 on DUI/DWI - California
More details to this question:
Does it make a difference whether i was driving or not when i was arrested for a DUI? I was driving on freeway obeying the speed limit another vehicle cut me off. I swerved to avoid hitting them and crashed into a guard rail. No other vehicles were involved no other people were injured. The other car did not stop.
9 ANSWERS
Criminal Trial Attorney serving San Jose, CA
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Law Office of Thomas F. Mueller
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The DA doesn't need to prove that the CHP saw you driving. They usually attempt to prove their case by circumstantial evidence.
Answered on Jul 12th, 2011 at 11:41 AM
I assume you mean, can you be arrested or convicted of a DUI even if you were not driving when the officer arrived. The answer is YES and YES. There are two types of evidence, direct and circumstantial evidence. Direct evidence is the officer seeing you driving. Circumstantial evidence is the fact that you were in an accident, and that I assume at some point you were given a field sobriety test and took a blood or breathe test. Most importantly you need to retain an experienced DUI defense firm immediately.
Answered on Jul 12th, 2011 at 9:26 AM
Wrongful Termination Attorney serving Huntington Beach, CA
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Nelson & Lawless
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Being in the car under the influence is all that matters. You crashed. It is a little hard to claim you werent driving. When arrested or charged with any crime, the proper questions are, can any evidence obtained be used against you, and can you be convicted, and what can you do? Raise all possible defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments, for evidence suppression or other motions, or at trial. You can hire an attorney, unless you know how to effectively represent yourself in court against a professional prosecutor intending to convict. He will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain, or take it to trial if appropriate.
Answered on Jul 12th, 2011 at 6:45 AM
Criminal Law Attorney serving Los Angeles, CA
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Law Office of Gabriel Dorman
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While driving is an element of a DUI that must be proven, the fact that you were not seen driving by the officer doesn't necessarily save you. The fact that your car crashed into the guard rail on the freeway is circumstantial evidence that you were driving the car as there has to be some reason as to how your car got there in the first place. If the police actually witnessed your crash then this would be direct evidence of driving. However, you being at the scene with your car that was crashed into the rail is circumstantial evidence of driving. I hope this answer was helpful. Good luck.
Answered on Jul 11th, 2011 at 3:54 PM
Criminal Defense Attorney serving Temecula, CA
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Joseph A. Katz Attorney at Law PLC
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Yes, it absolutely does make a difference to your defense whether or not your were driving a vehicle. You appear to have been doing so. If you mean to ask whether or not you can be charged with a DUI when the officer did not personally see you driving, the answer is, "Yes".
Answered on Jul 11th, 2011 at 3:02 PM
Criminal Defense Attorney serving Santa Rosa, CA
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Michael T. Lynch
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Yes and no. It does not matter if you were driving when you were arrested. In only matters if you were driving when you were impaired. You can certainly be lawfully arrested even if you were not driving at the time. However, in order to actually convict you of DUI the DA must still show you were driving. This can be shown through circumstantial evidence. Who had the keys? Did someone report the accident and can place you behind the wheel? In what name is the vehicle registered? How long after the accident did authorities arrive? Was anyone else in the vehicle? Could a separate individual have driven and crashed the vehicle and then successfully fled the scene? All of these questions would have to be answered to the satisfaction of the jury. Good luck.
Answered on Jul 11th, 2011 at 11:50 AM
Criminal Defense Attorney serving Roseville, CA
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Chastaine | Jones
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According to your questions, you were driving. I'm guessing that you were out of the car when the police pulled up and you were arrested. This is legal, when you have a crash you don't have to be behind the wheel when the police pull up. Sorry.
Answered on Jul 11th, 2011 at 11:42 AM
Criminal Defense Attorney serving Orange, CA
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Law Office of Joe Dane
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In order to convict you of DUI, they must prove that you were driving under the influence and/or with a blood alcohol level at or above 0.08%. Do they have to witness the driving? Not necessarily, but they still have to prove you were driving and when the driving was. Sit down with a local criminal defense attorney to discuss the particulars and possible defenses.
Answered on Jul 11th, 2011 at 11:41 AM
It makes a world of difference. One of the elements of a DUI is driving. Without driving there is no DUI. But, you will need an attorney to argue this for you in court. Prosecutors hear this "excuse" on a daily basis and make it a genral rule not to buy it.
Answered on Jul 11th, 2011 at 11:31 AM