A common issue in a DUI case is whether the element of “driving” can be proven. Although many DUI cases involve a law enforcement officer observing a suspect driving a vehicle while intoxicated, not all DUI cases involve a direct observation of driving by law enforcement. Officers may be responding to the scene of an accident or following up on a call from an anonymous tipster or private citizen and may not have seen the suspect drive.

The Element of Driving in DUI cases

In every drunk driving prosecution under California Vehicle Code Section 23152, the prosecution must prove beyond a reasonable doubt that you were driving while intoxicated. California’s interpretation of its driving while intoxicated statute is strict.

Also, California is one of only seven states that confine the substantive offense of “drunk driving” to the act of “driving” a vehicle, as opposed to operating a vehicle. These attributes of California’s implied consent law make its statute one of the narrowest, if not the narrowest, drunk driving laws in the nation. (Mercer v. Department of Motor Vehicles (1991) 53 Cal. 3d 753, 761, 280 Cal. Rptr. 745, 809 P. 2d 404)

When You May Not Actually Be Driving

Under California law, if you were not actually driving a vehicle, then you cannot be convicted for DUI. There are several instances when a law enforcement officer may incorrectly believe that you are driving a vehicle when in fact you were not. Common examples include:

  • You were merely a passenger in the vehicle but mistaken for the driver
  • You exited the driver’s side of the vehicle, but were not driving; AND
  • You were asleep in the driver’s seat but did not actually drive the vehicle

Moreover, the prosecutor needs to prove beyond a reasonable doubt that you were actually driving the vehicle. If no law enforcement officers or other observer actually saw you driving the vehicle, then you may be able to bring up the defense that you were not driving. An experienced Wallin & Klarich DUI defense attorney can help you raise all possible defenses in your DUI case.

Riverside DUI Defense Attorneys

If you were arrested and charged with a DUI in Riverside, you must immediately contact one of our experienced Riverside DUI attorneys at Wallin and Klarich. We have been successfully helping Riverside residents charged with a DUI challenge every element of their crime, including driving, for over 30 years. Wallin & Klarich has the experience to help you avoid the potentially devastating consequences of a DUI conviction. We know that this is a difficult time for you and your family and we are here to help. Our offices are located in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, Victorville, West Covina, Torrance, and Sherman Oaks.

Please call us at (877) 4-NO-JAIL or (877) 466-5245 or visit. We will be there when you call.

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