But I Was Not Driving, So It Can Not Be a DUI!

You have just left a fantastic party. The music was loud, the energy fierce, and the alcohol flowed for what seemed like an eternity. Your plan for the evening was to party and party you did. Knowing full well that you would not be able to drive home, or anywhere for that matter after the festivities, you designated a sober friend, before you even got to the party, who would be tasked with getting you home safely.

And then plans changed.

Your friend, the one who agreed to be your designated, sober driver, decided that she too, wanted to party. The music played, the mood felt right, and she drank.

In a situation like this, where you have to get home, there are no buses or trains and cabs are far and few between, knowing what to do can be challenging. Some might decide to walk off their stupor, though that probably would not help quickly enough. And some might decide, despite their drunkenness, that they are able to drive. This is obviously a bad, no- the worst choice possible.

But what about the person who decides to get into their car, but not drive it? What about the person who decides to get into the car, puts the key in the ignition and starts to drive but then stops, because they have momentarily forgotten that they should not be driving? And the person who was a modicum of wherewithal and decides to move the car away from a no parking zone, just so they can sleep it off without risking being towed? Are these situations classified as driving while under the influence?

Sleeping Man in a Car

Despite the good intentions you might have, these situations do indeed fall under the legal definition of driving under the influence in the state of California. The general rule of thumb when it comes to motor vehicles and alcohol, no matter what, who you are, or where you are, is that they simply cannot mix. More specifically, the motor on your vehicle, no matter what kind of vehicle it is, cannot be engaged.

But what about…. ?

Truth be told, there are certain situations in which you can be legally drunk and in a vehicle without being in violation of California state law. If you are accused of driving drunk, it is of course up to the prosecution to ultimately prove to the court that you were driving under the influence.

The City Attorney or District Attorney, depending on where your case is filed, has the burden of proving their case against you beyond a reasonable doubt at trial. Your DUI attorney’s job is to raise reasonable doubt to the jury as to why the City Attorney has not proved each element of a DUI charge.

So what is allowable?

  • Sleeping in a car while drunk, even in the driver’s seat, without operating the vehicle.
  • Turning the key in the ignition and allowing the motor to run, but not putting the car in reverse, drive, or neutral and,
  • Being in a car that moves, but not because you willingly or intentionally made it do so. For example, if the key was in the ignition and your knee moved it while you were asleep.

Woman sleeping in the backseat of a car

If you are pulled over by the police and accused of driving while under the influence despite not actually having done so, the legal system will have to prove otherwise. If you have witnesses who can vouch for you or community cameras that have your action, or rather inaction, recorded, you may have an easier time proving, to the best of your abilities, that you were not in fact driving drunk.

But what should you do if you are accused of driving drunk? First of all, it is your responsibility and ultimately in your best legal interest, to cooperate with the officer or officers who pull you over or accuse you of driving while intoxicated. Any grand proclamations of innocence, particularly if you smell of alcohol, though not a crime in and of itself, will not do you any good. Do not give any information to the Police other than your driver license and registration. Respectfully decline to perform the field sobriety test in the field and the preliminary alcohol screening test (the handheld breath test at the scene where you were pulled over).

Tell the officer you would prefer to do the BAC test or Blood (best choice) at the station. Yes, this does mean the police will arrest you. However, they will arrest you anyways if you do the Field Sobriety Tests and the Preliminary Alcohol screening test and your BAC is over a .08. You might as well buy yourself time to get a potentially lower reading on the Blood or Breath at the station. In short, if you are arrested for DUI, you should offer the police your driver’s license, respectfully decline field sobriety tests of any kind, but submit to a breathalyzer or a blood test at the police station—and finally, contact the Hurwitz Law Group, Inc immediately to come to your defense.

The Hurwitz Law Group, Inc has defended many DUI cases, helping many satisfied clients achieve a favorable outcome in their case. The Hurwitz Law Group, Inc insists that individuals never drink and drive, nor come within questionable proximity to an operating motor vehicle. However, if you find yourself in questionable circumstances with regard to a DUI charge, the Hurwitz Law Group, Inc is an aggressive LA DUI law firm that aims to achieve the best possible result for our clients.

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