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The No Driving Defense

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The “No Driving” Defense Overview

The prosecutor must prove that you were actually “driving” a motor vehicle. This element becomes difficult for the prosecutor to prove if the police do not observe you driving. If you pulled over to the curbside or a traffic collision occurred, and the police did not see you driving, the prosecutor has a more difficult case on its hands. Also, your blood or breath test must have been obtained within three hours of the time you were driving.

What if I wasn’t driving when I was pulled over? Or if the police did not see me driving?

In order to be convicted of DUI, California Vehicle Code Sections 23152 and 23153 both require that you actually have been driving a motor vehicle. But what things constitute driving?

Most of the time this is not an issue. The police usually observe the DUI suspect driving a moving automobile on a highway, such that this element is often taken for granted and, therefore, there is no contention about this issue. However, on occasion, the arresting officer has not actually seen the conduct that, irrefutably, constitutes “driving.” Instead, the officer has probably found the DUI suspect asleep on the front seat of a car that is lawfully parked, keys in the ignition, with the transmission set to “neutral” and the headlights and wipers on.

The California Supreme Court drew a contrast between the term “drive,” normally understood to require there have been “volitional movement of the vehicle,” and the term “driver,” which CVC §305 defines as someone who is “either driving or in actual physical control.” The court said that the phrase “actual physical control” does not appear anywhere in the drunk driving offense statutes. Additionally, the court noted that because “driver” is defined as a person who drives or is in actual physical control, the two terms (drive vs. actual physical control) must have different meanings. Mercer v. DMV (1991) 53 Cal.3d 753,

Interpreting the law strictly instead of broadly, the court held that being in mere actual physical control of a vehicle is not enough to constitute “driving.” Therefore, for purposes of the California drunk driving statutes, driving actually requires that the person exercise volitional movement of the vehicle.

Mind you, whether you were actually driving and whether there was direct proof of your driving are two separate issues. The prosecutor can establish that you were driving “circumstantially,” in other words, by inference from whether you were observed exiting the driver’s side of your vehicle, the warmth of your engine and other tell-tale signs.

On the other hand, merely being found behind the wheel of a vehicle is not surefire proof that you were driving if the circumstances can show that you had pulled over to rest, your vehicle was off, you had been sleeping, or other facts indicating that you were in your car but had not been exercising “volitional movement of the vehicle.” Based on the circumstances of your stop, our Torrance DUI lawyer (South Bay DUI lawyer, Los Angeles DUI lawyer) may be able to successfully advance this argument and have your case dismissed before or at trial.

Ernenwein & Mathes, LLP, has experienced Los Angeles criminal defense lawyers with over 60 years of experience combined defending persons accused of DUI.

Robert Ernenwein is a former Los Angeles deputy district attorney and is certified as a Criminal Law Specialist by the California State Bar Board of Legal Specialization. He has been selected for inclusion in California Super Lawyers for several years and has appeared as a legal analyst on multiple cable news programs, including Fox News.

The experience and capabilities that the attorneys at Ernenwein & Mathes, LLP, will bring to your DUI defense are unmatched.