Is it still considered a DUI if you were not driving at the time that the police observed you?

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Is it still considered a DUI if you were not driving at the time that the police observed you?

My boyfriend was about to hit a deer while driving so he swerved and hit a tree instead. He got out of the car to check the damage and in less then 5 minutes the highway patrol showed up. He was charged with DUI because he had been drinking earlier. Is this really considered a DUI if he wasn’t in the driver seat or driving at the time when the police showed up?

Asked on July 19, 2011 under Criminal Law, California

Answers:

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

Answered 10 years ago | Contributor

Yes you can be arrested for a DUI even if you are not actually behind the wheel and driving at the time.  Under the law, the police do not have to actually observe you behind the wheel of a moving vehicle.  Legally all that is needed is evidence of driving. The fact that he was pulled off to the side of the road is  thatreasonable proof he had been driving just prior to the accident (I'm sure he stated as much when the troopers questioned him about the incident). This would have all been legally sufficient to demonstrate that he exerted control over the car. Additionally, I don't know what, if anything, tests were administered to him at the scene (breathalyzer, blood, field sobriety) would further legally establish that he not only exerted control over the car but did so at a time when he was "under the influence" (legally intoxicated).

That having been said, this does not mean that he doesn't have legal grounds on which to fight the charge.  Defenses can be enlisted which could result in getting the charge reduced or dismissed outright.  At this point your boyfriend needs to consult with an attorney that handles drunk driving cases. Since a DUI triggers both civil and criminal cases, he really should have legal representation. He can not only be left with a criminal record but he could lose his drivers license and his insurance rates will be affected; possibly even his employment and eligibility for professional licenses, etc.


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