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One of the key elements in a California drunk driving arrest is whether or not the accused was actually driving at the same time they were drunk. These issues relating to driving most often arise where a person is found asleep behind the wheel of a car on the side of the road. There are different standards that apply to this element of driving, depending upon whether the motorist is defending himself in criminal court, or defending the DMV Administrative Per Se (APS) action.
In a California drunk driving criminal case, a prosecutor must prove the act of “driving” in order to obtain a DUI / DUI conviction. In fact, in our system of justice, it is the prosecutor that bears the burden of proving each and every element of the case beyond a reasonable doubt. If there is a reasonable doubt regarding any element of the crime charged, the accused is legally entitled to a judgment of not guilty. If it cannot be proven that the act of driving took place, a DUI / DWI drunk driving case will fall apart.
In order for the Department of Motor Vehicles (DMV) to suspend a license, it is not enough for the officer to assume the car was being driven – he or she must actually see the vehicle in motion. The legal standard for purposes of the California Department of Motor Vehicles action is that some “volitional movement” must be observed. An officer’s assumption that the driver was operating the vehicle is considered circumstantial evidence, and cannot be considered at a DMV hearing.
However, circumstantial evidence of movement can be considered in a DUI criminal court case. For example, a vehicle hood that is warm to the touch or a set of keys in the ignition is circumstantial evidence that the car has been driven. However, an experienced drunk driving criminal defense attorney can demonstrate that circumstantial evidence does not prove one or more elements of the crime, creating reasonable doubt and resulting in a favorable outcome for the client.
Remember, in order to obtain a conviction in a drinking and driving case, a prosecutor must prove each element of the offense. A defense attorney with experience in drunk driving cases will know how to attack both direct and circumstantial evidence of the “driving” element of DUI / DWI.