Can You Be Arrested, Charged And Convicted Of A DUI In San Diego County If You Are Not Observed Driving? 

The title is a bit misleading, because really, one can be arrested for any alleged crime. The important questions are whether the officer had probable cause to make the arrest and whether the prosecuting agency, later, has enough evidence to meet their burden at trial. But to answer the question posed, yes. California law allows the officer (and ultimately the prosecutor) to rely on circumstantial evidence that the vehicle had been driven while the driver was impaired or while having a BAC of .08 or more. Most commonly, a driver is found sleeping in their car in the middle on the side of the road. The officer will conduct a welfare check (considered a consensual encounter- meaning no reasonable suspicion has to exist for the contact to be legal), and upon smelling the odor of alcohol emanating from the vehicle or person, will begin attempting an investigation.

Police officers and prosecutors have various common tactics in attempting to show that the vehicle was recently driven, and based on the defendant’s BAC, was driven within the time frame where the defendant was over the legal limit. For instance, the officer will note in her report that the hood of the vehicle was warm to the touch; the inference being that it was driven near in time to the contact with the alleged drunk driver. Such argument, in my opinion, is ridiculous, and during one hearing I asked the officer if he had studied thermal engineering or the study of heat diffusion through various metal. “Objection, argumentative… Sustained!” I thought it was a valid question. 

The statute itself lends support to these types of prosecutions. Vehicle Code section 23152 allows a trier of fact to presume that if a valid BAC was determined to be a .08 or above within three hours of the driving, the trier of fact may presume that it was a .08 or above at the time of driving. Various experts have opined that this allowable presumption is based on junk science, but it’s still the law. Another common issue here is the prosecution’s ability to determine the time of driving. How? Most of the time through the defendant’s own statements. Stay quiet!

There was a recent story about a Texas woman who called 911 and reported herself to be too drunk to drive. Both her and her friend were arrested, the woman for DUI and her friend for drunk in public. 

What do you think? If someone is driving while impaired, realizes it while driving and decides to pull over, should there be a different and reduced crime that person could be charged with? Or is a DUI a DUI?

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