The DUI “No Driving” Defense

DUI Defense Legal Guide

In this guide, I will explain the DUI “no driving” defense which is the most successful defense against a DUI conviction because the officer must prove you drove the car for a DUI.

However, the officer can reasonably infer you were the driver1 in certain scenerios so context and evidence are crucial with this DUI defense.

Let’s dig deeper to understand how this defense may be used by a DUI attorney.

In This Guide To The ``No Driving`` Defense We'll Cover:

Reasons For DUI Stop

Most DUI arrests are typically based on a traffic stop by a peace officer who has observed the motorist to have either violated a traffic law or ordinance or who was driving erratically.

This might include:

  • Failing to stop at a stop sign
car blowing past stop sign
  • Running a red light
  • Speeding
  • Making an unsafe lane change
  • Driving the wrong way on a one-way street
  • Swerving within a lane of traffic
  • Driving at night without headlights on

Other arrests are made following traffic accidents when the officer notes that the motorist sitting in or standing just outside a damaged vehicle had exhibited signs of drinking or intoxication.

Lack Of Observation

In nearly all DUI encounters, the peace officer has directly observed the motorist and the driving conduct that led to the stop and to the eventual arrest.

But what about scenarios where the officer did not see you driving the car?

Can you still be arrested and convicted of DUI? In other words, is it a defense to a DUI where the officer did not observe you driving?

Requirement Of Officers Presence

Many states do not allow persons to be arrested for a misdemeanor that was not committed in the officer’s presence.

However, arrests are based on probable cause or reasonable inferences from the facts at hand that the person committed the crime or that is more probable than not that the person committed it.


If a person is lying on the ground bleeding and another person is standing over him with a bloody knife, a reasonable person would infer that that person stabbed the other individual.

For a DUI conviction, you must have been actually driving a vehicle but an officer can make reasonable inferences based on the circumstances existing at the time of the stop.

Requirement Of Driving

Under California law, you must have been driving the car to be convicted of DUI, which means having moved it any distance whatsoever2. There is no requirement that the engine even be on.

For example, a car can roll in neutral and you will be considered as having driven it  or moved only a few inches3.

There are other quirks in the law that can nab someone who may not even be in the driver’s seat. If you allow your front seat passenger who is intoxicated to steer for you, that individual can be prosecuted for a DUI4.

However, if you are merely sitting in the front seat with the engine running and never moved the car, you are not considered to have been driving5.

DUI Scenerios

In the context of a DUI, there are instances where the officer did not observe the person driving a vehicle but made the arrest anyway. These may occur in the following situations:

  • An accident has occurred and a person is seen standing outside a vehicle.
  • A motorist calls 911 to report a car that is weaving all over the roadway and police subsequently find the car parked somewhere or at the owner’s residence and arrest him.
  • Police arrive at a hospital to question a patient transported there by ambulance following an accident and request a blood test that shows a BAC of at least 0.08%.
  • A person is observed sitting in the driver’s seat or is sleeping who is awakened and exhibits signs of intoxication.

In none of these scenarios did a peace officer observe the defendant driving the car but the officer can still make the arrest if the defendant exhibited signs of intoxication or impairment and there were certain factors or inferences to support the allegation that the defendant was the driver:

  1. The defendant admitted to driving the car
  2. There was no one else in the vicinity of the car other than the defendant and it could not have gotten there without someone having driven it6
  3. A witness identified the defendant as the driver7
  4. The keys are in the ignition and the defendant was sitting in the driver’s seat or asleep miles away from any residence

Still, the defendant can in some cases assert the “No Driving Defense.”

Examples Of The “No Driving” Defense

No One Admits Driving

There have been many cases where an officer comes upon an accident or car that is disabled with a number of people standing outside. While the officer can ask who was driving or easily determine the owner, if no one admits to driving, then the officer may not have probable cause to arrest anyone.

Eyewitness Testimony

Police encourage people to call 911 to report erratic or suspected drunk drivers. Often, police are able to track down the driver and make a stop so as to inquire further. If the witness is able to identify the driver and that he/she was observed to be acting erratically while swerving all over the road, then an arrest can be made and the motorist charged.

However, there are examples of where the police go to the car owner’s home after a report is made.

Even if the owner at the residence admits to driving, there may not be sufficient evidence that the person was under the influence while driving since the individual may have been drinking after arriving home.

Abandoned Vehicle

The same defense can be made where police find an abandoned vehicle that may have been in an accident and traced it to the owner or found the owner wandering on the street.

Police cannot determine if the person had been drinking after leaving the car or what the person’s BAC level was when the person may have been driving or even when the person had been driving.

Sleeping Occupant

Police often find cars pulled over to the shoulder and the alleged driver inside and fast asleep. Even if the officer did not observe the person driving, it can be presumed since it could not have gotten there without someone having driven it to this location8.

An exception to this is if the car and occupant are found in a parking area. Even if the engine is running, there is no proof that the occupant had driven the car any distance.

See Also Our article on being charged with a DUI in a Parked Car.

Additional DUI Defenses


If you are interested in expunging a dui conviction take our expungment eligibility test to see if you are eligible.

  • Find Out if You Are Eligible To Have Your Record Expunged
  • Stop Worrying About Employer Background Checks
  • Stop Worrying About Landlord Background Checks

How We Can Help

The No Driving Defense is not used often but it can be effective if particular circumstances exist where the arresting officer did not observe the defendant drive but made the arrest anyway.

So long as the defendant did not admit to driving, there are no credible witnesses and no reasonable inferences to suggest that the defendant had been driving, then you may have a valid defense.

Contact Us at 818-351-9555 For A Free Consultation

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  1. Driver Defined: Vehicle Code 305. []
  2. Henslee v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445, 214 Cal.Rptr.249. []
  3. Padilla v. Meese (1986) 184 Cal.App.3d 1022, 229 Cal.Rptr. 310. []
  4. In re Queen T. (1993) 14 Cal.App.4th 1143, 17 Cal.Rptr.2d 922. []
  5. People v. Engleman (1981) 116 Cal.App.3d Supp. 14, 172 Cal.Rptr. 474. []
  6. People v. Hanggi (1968) 265 Cal.App.2d Supp. 969, 70 Cal.Rptr. 540. []
  7. People v. Quarles (1954) 123 Cal.App.2d 1, 266 P.2d 68. []
  8. People v. Wilson (1985) 176 Cal.App.3d Supp. 1 9, 222 Cal.Rptr. 540. []

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