We have successfully used this defense to help dozens of clients get their DUI’s reduced or dismissed.
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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
- Running a red light
- 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
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
For example, a car can roll in neutral and you will be considered as having driven it or moved only a few inches2.
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 DUI3.
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 driving4.
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:
- The defendant admitted to driving the car
- 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 it5
- A witness identified the defendant as the driver6
- 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.
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.
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.
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 location7.
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
DUI Defenses That May Be Applicable In Your Case.
Important Information On The Investigative Process for A DUI
If you are interested in expunging a dui conviction take our expungment eligibility test to see if you are eligible.
Next Steps If You Need 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.
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- Henslee v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445, 214 Cal.Rptr.249.
- Padilla v. Meese (1986) 184 Cal.App.3d 1022, 229 Cal.Rptr. 310.
- In re Queen T. (1993) 14 Cal.App.4th 1143, 17 Cal.Rptr.2d 922.
- People v. Engleman (1981) 116 Cal.App.3d Supp. 14, 172 Cal.Rptr. 474.
- People v. Hanggi (1968) 265 Cal.App.2d Supp. 969, 70 Cal.Rptr. 540.
- People v. Quarles (1954) 123 Cal.App.2d 1, 266 P.2d 68.
- People v. Wilson (1985) 176 Cal.App.3d Supp. 1 9, 222 Cal.Rptr. 540.