Is it really a DUI if the officer never witnessed me driving?

We were pulled over at a gas station in Sacramento, California, out of the car changing my flat tire, when the officer arrived. The keys were not even in the ignition. He asked who was driving and I admitted that I had been driving prior to receiving a flat tire. He then charged me with DUI.

Asked on June 27, 2009 under Criminal Law, California


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You were charged with DUI in Sacramento, California, but you were not in the car at the time and the officer had not observed you driving since you were changing a flat tire when he approached. The California definition of "driving" requires some volitional movement of the vehicle for purposes of DMV Hearings.  For court purposes, however, driving may be proved through circumstantial evidence if not directly observed.  Examples of this circumstantial evidence include a car's hood that is warm to the touch, or your case, where you admitted that you had been driving even though the officer did not witness it.

Since this is a highly technical area of the law, you should consult with a DUI attorney in Sacramento, California that specializes in these type cases.  There are many defenses available for DUI charges; possibly there is one that will help under the facts here.

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