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 in order to get you for a DUI, you actually have to be driving at some point, and when you were driving the police are going to have to somehow be able to determine what your blood alcohol level was at the time of driving.

So, I get cases where people crash their car and they're not driving when the police come upon the accident scene and the police have to figure out who was driving the particular car, when the accident occurred – that's a little bit easier to pinpoint things because there's usually witnesses there to talk to.

A lot of times everybody's all shaken up, but the police are going to try to identify who's driving and if they find somebody who is DUI, they're obviously going to try to get that person to take the field sobriety test, etc.

Car Breakdown on Side of Freeway

Other scenarios where there's people not driving related to DUI's is let's say your car breaks down on the side of the freeway. You're sitting there. Police eventually come up. The key for the police is they are once again going to have to determine when you were driving. Obviously, first that you were driving, 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 through common sense that you must have driven it there. So, they're going to ask you, were you driving this car? You say, yeah. They ask, when did you stop here?

You say five or ten minutes ago. Alright, that's it. They got you. You admitted you were driving and it was five or ten minutes ago. You're not going to have an angle to try to say I wasn't driving.

Falling Asleep on The Side Of The Road

Another big one I see is that sometimes people realize their drunk and finished and just park their car on the side of the road and go to sleep. Finished. That's not driving. If you're legally parked in a parking space – don't fall prey to the fallacy that if the keys are in the car — it doesn't matter if the keys are in the car.

That just might be evidence that you were just 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 black-out drunk or maybe they're drunk and parked their car, but it's partially blocking the road. That's driving.

The case law has said that would be driving for purposes of a DUI. So, again, it really depends on the circumstances. We can come up with a million different scenarios. The bottom line is 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.

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

The one though the police didn't do is, they didn't pinpoint the time of the crash, so I was able to get that case dismissed because how were they going to figure out what the person's blood alcohol level was at the time of driving which they must do in a DUI case if they didn't know when the crash occurred.

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

That's going to make them bring in all their witnesses and they will have to bring in an expert because they're usually going to have a blood or breath result, and that expert is going to have to extrapolate backwards and be able to say, okay, his or her blood alcohol level was this at this time.

I say that it must have been this at this time and here's why. So, they have to explain that. They have to have crucial key things, which is when were you driving and when did they take your blood test. If they don't have when you were driving for purposes of the DUI, that's it. They don't have the case, because again, it's very key.

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 get you for Vehicle Code Section 23152b which is the .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 a .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.

So, if you have one of these driving under the influence cases and there's a question as to when you were driving, come and sit down, we'll go over everything in the privacy of my office and we'll figure out exactly how to handle your DUI case.