- When a driver is found in or near a car that is blocking traffic (asleep at a green light or in the drive-thru line at a fast food restaurant)
- When the vehicle has been involved in a collision
- When a subject is so impaired that he poses a danger to himself or others
- When the person will not be apprehended unless he is immediately arrested, or
- When the person is likely to destroy evidence of the crime unless he is immediately arrested.
Thursday, January 5, 2017
Can I Get a DUI in California if the Police Didn't See Me Driving?
Depending on the circumstances, you may be arrested and convicted for DUI in California even if you were not personally observed driving.
In most cases, police can only arrest someone for a suspected misdemeanor under 3 circumstances: 1) the offense is committed in the officer's presence (the cops see you do it), 2) the police have a warrant for your arrest, or 3) a private person who witnessed the crime signs a declaration under penalty of perjury, swearing that they saw you do it (a citizen's arrest).
DUIs are treated differently, though. There's a special provision in the California Vehicle Code (section 40300.5) that specifically allows police to arrest suspected drunk drivers, even when they aren't caught in the act of "driving under the influence".
To make sense of VC 40300.5, you have to understand that the crime of DUI involves driving a car while impaired. Contrary to popular belief, it is not illegal to sit behind the wheel of a parked car while you're drunk, regardless of whether or not the keys are in the ignition. It's not even illegal to sit in the driver's seat of a running car while you're impaired. To be guilty of DUI, the DA must prove that you drove the car while you were under the influence of alcohol. "Driving" a car involves intentionally exercising some control over the vehicle (e.g. moving the car even one inch).
Police often encounter suspected drunk drivers who aren't actually observed in the act of driving, though. Take the example of someone who is found passed out at a green light. Police didn't actually see him commit the offense because they never observed the suspect "exercise control" over his vehicle -- he was asleep when police arrived and the car hasn't moved. Or consider a situation where police find a car wrapped around a tree with the driver trapped inside. Or a car stopped on the shoulder of the road while the driver "sleeps if off" or pees in the bushes. In each of these cases, the suspect was never personally observed committing the offense (driving the car), but the police will arrest him anyway.
VC 40300.5 permits police to make DUI arrests in situations that strongly suggest a driver must have been impaired at the time of driving, even if they didn't actually see him doing so. This doesn't necessarily mean that the DA has a strong case in court -- and you may have a good defense at trial -- but it definitely means that you're spending the night in jail if you're caught.
Some of these situations where police are permitted to make arrests under VC 40300.5 include:
This last one is the "catch-all". Since alcohol naturally dissipates in the human body over time, police can always claim that they're afraid evidence will be metabolized unless the suspect is immediately arrested and taken to the station for testing.
If you're ever questioned by the police about a suspected DUI, you should avoid talking yourself into trouble by politely refusing to answer any questions. Too many of my clients dig themselves into a hole by explaining to the officer, "Yes, I was wasted, so I pulled over to sleep it off". That's not a defense, it's a confession. These types of cases may be very defensible, as long as you don't help the police build their case against you. We've achieved some great results in cases where our clients were not observed driving.
If you or a loved one has been arrested for DUI in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.