Under the California Vehicle Code, "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle." (See 23152 VC.)
Simply stated, in order for the defendant to be found guilty, the prosecutor must prove to a jury that the defendant was: 1.) Driving a vehicle; and 2.) Under the influence.
Often, people who are just standing by a vehicle, sitting in the driver's seat, or sleeping in their car are charged with drunk driving. How is this legal if the officer did not actually witness driving?
According to California Penal Code Section 836, "A peace officer may arrest a person...without a warrant...whenever the following circumstances occur: (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer's presence..."
However, there are several exceptions to the presence requirement providing a very big hole through PC 836, allowing an officer to make an arrest for DUI even if the actual driving was not observed by the arresting officer. The exceptions include:
(a) The person is involved in a traffic accident.
(b) The person is observed in or about a vehicle that is obstructing a roadway.
(c) The person will not be apprehended unless immediately arrested.
(d) The person may cause injury to himself or herself or damage property unless immediately arrested.
(e) The person may destroy or conceal evidence of the crime unless immediately arrested. (See VC Section 40300.5.)
But, even if the officer made a valid, warrantless arrest, the prosecutor must still prove driving to win their case. According to Mercer v. DMV, the act of driving in the drunk driving statutes requires actual volitional movement of the vehicle. However, the courts have held driving can be proven by circumstantial evidence. This is a fact-based issue and many of these cases end up in trial, leaving the jury to decide what happened.
If you have been charged with DUI in Southern California, and you were not actually driving the car or there were no witnesses to your driving, you should immediately contact a criminal defense lawyer who exclusively handles drunk driving cases to protect you and your rights.