CanI fight this DUI charge if I blew under the legal limit and wasn't driving? 11 Answers as of December 27, 2011

If you weren't driving and if you were under the legal limit, then you can fight and avoid the consequences: legal, financial and professional.

At any time you may fight a DUI. The question is do you have a chance to win. Like all criminal cases the defense depends on the facts. You can be convicted of a DUI with a breath test under 0.08. This charge would be based on the arresting officers observations. The observations that are important in this are how you were driving, statements by witnesses, and performance on the field sobriety test. You will have a chance in your case of pleading this down to a lesser offence. An attorney will help greatly in your case.

I don't understand why you were arrested for DUI if you weren't driving. But just because you are arrested does not mean that the DA will decide to issue the case. If the case has proof problems then there is a good chance it will not be issued. If it is, sounds like you have a very good defense.

You can hire yourself a DUI specialist because without one, you have no chance. Remember that they already cited you, and you have a court date, so the cop obviously didn't believe what you had to say. Remember you have only 10 days to try and save your driver's license.

There are four elements necessary to convict for a DUI. Driving is definitely one of them. The DA must prove the driving to convict. It can be considered to be a proper arrest if you are in or about a vehicle, but that is not enough to convict.

The short answer is you get a lawyer and fight. They may end up not filing charges against you, in which case you're all set. If you were under 0.08%, the DMV will not take action against your license unless you're convicted of DUI. If charges are filed, it sounds like you may have completely valid defenses to the charge of DRIVING under the influence, since they can't prove driving. In addition, the legality of the arrest may lead to the suppression of any blood alcohol results, even though they're under 0.08%. It may also be worth it to consult with an attorney that handles licensing issues since you're on the verge of applying for a state license. The last thing you want to happen is to have this incident impact your license by improperly filling out the application.

If you were under the legal limit the only way they can convict is for a cop to say that your actions were that of a drunk but usually if under the legal limit the DA will dismiss. I don't get that you weren't driving. You mean you were a passenger or they busted you while parked. If a passanger a sure winner. If parked, not so clear as they can feel the hood and testify the car was recently driven. Good luck.

If you were not driving the vehicle you cannot be convicted of a DUI. That is a necessary element of the offense; it's also a necessary element for DMV administrative per se suspension. If you still have time you must request a hearing from the DMV (look on the temporary license you were given at the time of your arrest). It will give you the number to call. What is considered "driving" though is a term of art and doesn't necessarily mean that you were operating the vehicle down the roadway at the time you were stopped. Better yet, get in touch with a good criminal defense attorney who can help you. It gets complicated. As to the legal limit, let me say that you can still be charged with DUI even if you are below a .08 (assuming you were driving). There are two parts to the DUI law - the (a) section and the (b) section. The first says that you were driving "under the influence" regardless of the BA at the time; the (b) section says you were driving with a .08 BA or higher. They are similar but not necessarily the same. Again, a good lawyer can explain and assist you with all of this. Good Luck!

Fight this case! If the police have no evidence that you were driving, and your breath test was under ,08% then you should absolutely not be convicted. Get an experienced criminal defense Attorney with alot of DUI experience, and show the DA you are not guilty.

If you weren't driving, then your BAC is irrelevant. You status as a vet / student is also irrelevant. Hard to discuss specific strategy without knowing more details, but it sounds like you should hire at attorney to help you fight this.