I got arrested for a DUI in California but was not driving. Can I fight this in court and win? 17 Answers as of February 29, 2012

I was recently got charged with a DUI but was not the driver of my car. What are the chances of me winning this fight in court? I was in my car parked on the side of the road when the police found my vehicle. I had been at a party at the house of a friend, and my friend had been driving my car, but she had left me there because she was mad at me. I turned on the car with permission from the cop to get the heat going because it was a cold night after getting my identification from the back of the car. A few minutes later, he came back to the car and gave me a breathalyzer test, and I blew a low BAC. My car was towed, I got ticketed and now I have to go to court.

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Nelson & Lawless
Nelson & Lawless | Terry Nelson
Of course you can fight it. When arrested and charged with a crime, the proper questions are, can you be convicted, and what can you do? Defend the charges. Go to court, enter a not guilty plea, arrange bail reduction or OR, set up and attend the court hearing[s] and trial date[s]. File evidence suppression or other motions as applicable. Raise all the available defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments for motions, plea bargaining, or at trial. Go to trial if it can't be resolved with motions or a plea bargain. There is no magic wand to wave and make it all disappear. If you don't know how to do these things, then hire an attorney that does, who will try to get a dismissal, diversion or decent outcome through plea bargain for you, or take it to trial. If serious about doing so, feel free to contact me. Ill be happy to help you use whatever defenses you may have. If you can't afford private counsel, apply for the Public Defender.

Keep in mind: When you are arrested for DUI, upon release from jail or booking, you were given documents that included a notice from DMV that you have only ten days to file a request with DMV for a hearing on an appeal of the automatic one-year suspension of your license imposed upon arrest for DUI. Contact DMV and do so, timely, then appear at your scheduled hearing and present your evidence and testimony. If you don't know how to do these things, then hire an attorney that does.
Answer Applies to: California
Replied: 12/9/2010
Wise Law Group
Wise Law Group | Michael J. Wise, Esq
The No Driving defense is traditionally one of the more successful defenses in DUI cases. Consult an attorney regarding the potential viability of that defense in your particular case.
Answer Applies to: California
Replied: 12/9/2010
Law Office of Eric Sterkenburg
Law Office of Eric Sterkenburg | Eric Sterkenburg
You have not provided all the facts needed to answer your question. From what you have provided, you seem to have a trial able case. Contract an attorney for a free consultation.
Answer Applies to: California
Replied: 12/9/2010
The Law Office of Stacey Wolcott
The Law Office of Stacey Wolcott | Stacey Wolcott
One of the elements the District Attorney would need to prove to obtain a conviction for a DUI would be that you in fact were driving. It may be possible for the District Attorney to attempt to use circumstantial evidence to prove the driving element. However, if you are able to utilize the witness who was actually the driver of your vehicle that would definitely help refute the evidence that you were in fact the driver. It is definitely worth the fight so that you do not have a DUI on your record. I would be happy to discuss all the possibilities with you at a free consultation, feel free to give my office a call.
Answer Applies to: California
Replied: 12/9/2010
Law Office of Thomas J. Ogas
Law Office of Thomas J. Ogas | Thomas Ogas
You can fight this case in court. You have a very good chance of winning.

I've had cases like this dismissed in the past. A lot depends on which county you are in, and other details like the BAC, if it was your car, if you were in the driver's seat, where the car was parked, and if the police are going to say that they saw the car moving.

You should definitely hire an attorney and fight this case, regardless.
Answer Applies to: California
Replied: 12/8/2010
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    There is something missing here. If you were sitting behind the wheel but not driving usually no one will believe that. The cop will testify that he came up to the car, felt the hood and it was warm suggesting you had just driven it there. If the friend who really was driving and will come to court with you, if she is believable, you might have a shot. When you say you have a low BAC, how low was it. If .08 or more you are presumed to have been drunk. Good luck. To be perfectly frank I doubt anyone will believe this story.
    Answer Applies to: California
    Replied: 12/8/2010
    Robert Mortland
    Robert Mortland | Law Office of Robert Mortland
    You have a good case here. So long as you have witnesses that will come to court to testify that they were driving, not you. However, it depends what the officer states in court. The officer may state that he saw you driving. It would be good to get an attorney and review the police report as soon as you can.
    Answer Applies to: California
    Replied: 12/8/2010
    Law Office of Andrew Roberts
    Law Office of Andrew Roberts | Andrew Stephen Roberts
    The big question is what does the police report say? This is a good case to fight based on your facts. Were there witnesses? You were not driving and had a low BAC. You always want to fight from getting a DUI. Call if you have questions.
    Answer Applies to: California
    Replied: 12/8/2010
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    Sounds like a case worth fighting.
    Answer Applies to: California
    Replied: 12/8/2010
    The English Law Firm
    The English Law Firm | Robert English
    It is possible to win the case, but you will need effective counsel. Call my office for assistance.
    Answer Applies to: California
    Replied: 12/8/2010
    Alanna D. Coopersmith, Attorney at Law
    Alanna D. Coopersmith, Attorney at Law | Alanna D. Coopersmith
    No driving is a complete defense to DUI. If you are in the Bay Area and want to fight these charges, please feel free to give me a call.
    Answer Applies to: California
    Replied: 12/8/2010
    Law Office of Geoffrey M. Yaryan
    Law Office of Geoffrey M. Yaryan | Geoffrey M. Yaryan
    Not driving is a defense. If you can convinced a jury of the truth of your story, then you will be acquitted.
    Answer Applies to: California
    Replied: 12/8/2010
    Law Office of Michael Bialys THE DUI MAN
    Law Office of Michael Bialys THE DUI MAN | Michael Bialys
    Based on what your are telling me this is a very defensible case. In order to be Driving under the influence the State has to prove you were driving.
    Answer Applies to: California
    Replied: 2/29/2012
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Definitely. If you were not driving, then you're not guilty of a DUI. It's that simple. Turning on the engine is not enough to constitute driving, which is an element of DUI that must be proven by the prosecutor beyond a reasonable doubt. Contact a DUI specialist immediately, as the DMV portion requires timely action. It would be terrible to lose your license even before your court date, with no opportunity to be heard.
    Answer Applies to: California
    Replied: 12/8/2010
    Steven Mandell
    Steven Mandell | Law Offices of Steven Mandell
    It sounds like you might have a good defense to the DRIVING under the influence of alcohol charges. A lot will depend on how the cop wrote the report, and only an experienced criminal lawyer experienced in DUI and DMV matters can competently advise you of your situation, your choices, and the probable outcomes. Most criminal lawyers give free consultations. If your case is in LA and you'd like to talk to me, please don't hesitate to call me for a free consultation.
    Answer Applies to: California
    Replied: 12/8/2010
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