What is the Driving Defense?

I’d like to talk to you a little bit about what’s known as the driving defense.

The driving defense is a common defense that you typically see in DUI cases when the government has a difficult time proving that you were in fact the driver of the vehicle at the time that you were arrested for a DUI.

So what does that mean?

Under California Law, the government has to prove:

1. That you were the driver of the vehicle.
2. That your blood alcohol level was 0.08% or greater at the time of driving.
3. Your mental and or physical abilities were impaired and that you’re not driving as a reasonably sober person would.

So as you can see in either of those laws, the government has to prove that you were actually driving the vehicle.

So the driving defense works essentially when the government shows up. Meaning the police officer shows up and you’re already out of the vehicle and let’s say that they don’t have any evidence that you were actually driving when they first apprehend you.

Now this can be tricky because the government can also use what’s known as circumstantial evidence to prove that you are in fact the driver of the vehicle.

So let’s talk a little bit about the circumstantial evidence.

The officer can rely upon other factors in determining whether you were in fact the driver. So for instance:

• The officer can see whether the keys were in your possession. So at the time that the officer makes contact with you, if there’s no one else around and you’re the only person sitting outside of the vehicle and the keys are in your possession, then the officer can make a a logical inference in saying that you were driving the vehicle.
• Other factors that an officer can rely upon is to see the seat positioning. Does the seat positioning of the driver’s side of that vehicle match approximately your height? That’s another factor that they can rely upon.
• Another factor of course they can rely upon is determining if there’s no one else around. If you’re the only person there and you’re sitting beside your car, even if you’re not in the driver’s seat, that’s another piece of evidence that the government can rely upon.

Other ways that the government can try to prove that you were driving is to rely upon direct evidence. So for instance:

• If there’s other witnesses, perhaps a reporting party that called the police and saw that you were driving and then you got out of the vehicle, they can rely upon that witness’s testimony.
• They can also rely upon your own admissions. So let’s say that you’re outside of the vehicle and the officer asks you who was driving the vehicle. If you admit that you were, then of course that’s evidence that the government can use to show that you were driving the vehicle even if you’re not sitting behind the wheel by the time the officer makes contact with you.

So under the right circumstances, the driving defense can be a very effective defense in DUI cases. If you think about it in a driving defense, you’re not necessarily disputing the science of the DUI. So it’s not going to be a situation where there’s a battle of the experts and toxicologists arguing whether your blood alcohol level was 0.08% or greater at the time of driving.

It’s really not about the science of the DUI, it’s about establishing whether the prosecution can prove that first element that you were the driver of the vehicle.

So if you’re in a situation where you believe that these facts might apply to you and that you might have a driving defense available to you, make sure to pick up the phone and call and we’d be more than happy to provide you with a legal consultation to go over your options.