I do a lot of cases where people are not driving their car when the police come upon them, and that is a problem in a DUI case because to get a DUI, you have to be driving at some point, and when you were driving the police are going to have to be somehow able to determine what your blood alcohol level was at the time of driving.

So, I encounter cases where people crash their cars and are not driving when the police arrive at the accident scene. The police have to determine who was in the particular vehicle when the accident occurred – that's a little easier to pinpoint because there are usually witnesses present to talk to.

Often, everyone is shaken up, but the police will try to identify the driver. If they find someone who is suspected of driving under the influence (DUI), they will attempt to get that person to take a field sobriety test, etc.

Other scenarios where there are people not driving related to DUIs are when your car breaks down on the side of the freeway. You're sitting there. The police eventually come up. The key for the police is determining when you were driving. First that you were going, but when you were driving.

So, they'll come up and ask you. If you are the only one in the car, there is circumstantial evidence that you must have driven it there through common sense. So, they're going to ask you, Were you driving this car? You say, yeah. They ask, When did you stop here?

You said five or ten minutes ago. Alright, that's it. They got you. You admitted to being the driver, and it was five or ten minutes ago. You're not going to have an angle to say I wasn't moving.

Falling Asleep on The Side Of The Road

Another common scenario I see is when people, realizing they're too drunk to drive, park their car on the side of the road and go to sleep. However, they often leave the keys in the car, believing that this doesn't constitute 'driving'. This is a fallacy. If you're legally parked in a parking space, leaving the keys in the car can still be used as evidence that you were driving or about to drive.

That might be evidence that you were driving or about to drive. But if you're parked on the side of the road, whether the keys are in the car or not, and you're asleep, that's not driving.

However, there are circumstances where I've seen people park in the middle of the street – either because they're blacked out drunk or maybe they're drunk and parked their car, but it's partially blocking the road. That's driving.

Remember, the case law has stated that driving for a DUI would be considered driving. So, again, it depends on the circumstances. We can come up with a million different scenarios. The bottom line is that when you talk about driving for purposes of a DUI, you're going to want to talk to a seasoned DUI defense attorney if you have an issue related to that. This is not just a suggestion, but a crucial step in understanding and defending your case.

I had one case in Ventura. My client crashed into a pole, got out of the car, walked approximately three miles to get help, called Triple-A, got something to eat, and was headed back to the scene. The police come up and see the crash. They find him, and they arrest him for DUI.

Even if the police didn't pinpoint the time of the crash, it's not the end of the road. In a recent case in Ventura, my client's charges were dismissed because the police couldn't determine his blood-alcohol level at the time of driving. This shows that with the right defense, there's always hope for a positive outcome.

Again, many of these cases are fact-specific, meaning whether you have a defense or not will depend on the specific facts and circumstances related to the issue. The bottom line is this – when it comes to a DUI, if you want to test the prosecutor's case, you have to set the case for trial.

That will prompt them to bring in all their witnesses, and they will likely need to call an expert, as they will usually have a blood or breath test result to present. That expert will have to extrapolate backward and be able to say, okay, their blood alcohol level was this at this time.

I say that it must have been this, and here's why. So, they have to explain that. They need to have crucial vital information: when you were driving, and when they took your blood test. If they didn't have it when you were going for purposes of the DUI, that's it. They don't have the case because it's very vital again.

What Was Your BAC At The Time Of Driving?

You have to be driving a vehicle, and the question is, what was your blood alcohol level at the time of driving? If it was a .08 or greater, it's a DUI. If it wasn't a .08 or greater, they can't charge you with Vehicle Code Section 23152b, which pertains to a .08 or greater.

However, they could still make a run on you depending on the circumstances of the case for Vehicle Code Section 23152a, which basically says you had alcohol in your system and you couldn't safely operate a motor vehicle at the time of driving.

So, that doesn't require any type of .08. That's just saying they can prove that you were drinking and that you were driving around recklessly. For example, you couldn't walk when you got out of the car; you could pass a field sobriety test.

If you find yourself in a driving under the influence case and there's a question about when you were driving, please come and sit down. We'll review everything in the privacy of my office and determine the best course of action for your DUI case. Remember, seeking legal counsel is not a sign of guilt, but a proactive step towards a fair defense.