Does it make a difference if I was not driving when I was arrested for DUI? 13 Answers as of July 14, 2011

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.

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Law Office of Tracey S. Sang
Law Office of Tracey S. Sang | Tracey Sang
If the police can prove by direct or circumstantial evidence that you were the driver and that you were intoxicated at the time then obviously you can be convicted. If you have a viable defense that someone else was driving the car then that makes a big difference. If your defense is simply that no one saw you driving then that is probably not going to help you.
Answer Applies to: California
Replied: 7/14/2011
Law Office of Thomas F. Mueller
Law Office of Thomas F. Mueller | Thomas Mueller
The DA doesn't need to prove that the CHP saw you driving. They usually attempt to prove their case by circumstantial evidence.
Answer Applies to: California
Replied: 7/12/2011
Wallin & Klarich: A Law Corporation
Wallin & Klarich: A Law Corporation | Paul Wallin
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.
Answer Applies to: California
Replied: 7/12/2011
Nelson & Lawless
Nelson & Lawless | Terry Nelson
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.
Answer Applies to: California
Replied: 7/12/2011
The Law Offices of Gabriel Dorman
The Law Offices of Gabriel Dorman | Gabriel Dorman
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.
Answer Applies to: California
Replied: 7/11/2011
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    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".
    Answer Applies to: California
    Replied: 7/11/2011
    LynchLaw
    LynchLaw | Michael Thomas Lynch
    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.
    Answer Applies to: California
    Replied: 7/11/2011
    Grant & Grant
    Grant & Grant | Richard L. Grant, Esq.
    A person may be charged and arrested for a dui, regardless if they were driving the vehicle at the time of the arrest. It depends on the facts of each case and the subjective opinion of the officer as to whether the driver was under the influence. Most importantly, there must be a valid traffic stop and a valid DUI Arrest. All of which the DUI court case, assuming there was a valid stop and arrest, will turn on the alcohol level, BAC, obtained from the driver. It is recommended that you immediately consult with an experienced DUI & Criminal Defense Attorney without any further delay.
    Answer Applies to: California
    Replied: 7/11/2011
    The Chastaine Law Office
    The Chastaine Law Office | Michael Chastaine
    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.
    Answer Applies to: California
    Replied: 7/11/2011
    Attorney at Law
    Attorney at Law | Michael J. Kennedy
    They can clearly still prosecute you on circumstantial evidence of driving; whether they can arrest you for a misdemeanor not committed in their presence is uncertain: constitutionalists says no; pragmatists say yes.
    Answer Applies to: California
    Replied: 7/11/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Christopher Lee
    Yes, it does matter. You can be found guilty of a DUI even if you were arrested outside of your vehicle and your vehicle has been turned off. Typically the police will try to infer, based on the evidence and your level of intoxication, that you were driving while under the influence of alcohol. For example, you arrive at a party at 11:00PM and you consume 6 alcoholic beverages. You leave the party at 1:00 AM and start driving. You get into an accident at 1:15 AM. Police show up at 1:30 AM with you standing next to your damaged car. Based on your admissions/statements and evidence of intoxication, the police will likely infer that you were driving while under the influence. It does not matter whether or not the police see you driving or you were sitting inside the driver's seat when the police arrive. Your admission of "I was driving..." and level of intoxication will allow the police to circumstantially prove that you were driving under the influence at 1:00 AM.
    Answer Applies to: California
    Replied: 7/11/2011
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    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.
    Answer Applies to: California
    Replied: 7/11/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    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.
    Answer Applies to: California
    Replied: 7/11/2011
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