Charged with a DUI when I wasnt driving

[Kimfrkeanjo]

What is the name of your state (only U.S. law)? CALIFORNIA

I was driven home after seeing friends in a bar. A DD drove my car to my house and parked, another friend drove me home, then they left in the second vehicle. I entered my home, and went back out shortly after to walk the dog. A police officer was near my car, and questioned me about driving/drinking/etc. I told him I wasn't, explained the situation. He proceeded to field sobriety test. Says a witnessed called in suspecting drunk driver, and followed my car to my home. The officer never saw me in my car or driving my car.

I was over the limit, that's why I was driven home. Im not debating the drinking. Im debating the validity of a witness who claims I was driving. It was 3 am, pitch black....if someone was following my car, they wouldn't be able to see who was driving....let alone describe me, which the officers claim in their statement.

Is this legal? Do they even have a case? If its defendable, do you think its pretty solid? Any advice? Please help, I have court in a few days. Thank you.

 

[justalayman]

I believe the cop has to observe you driving for the charge to stick

beyond that, if that is not true, the witness would have to testify that they saw you driving so you have that going for you as well



but given the seriousness of the matter, hire an attorney.

 

[Kimfrkeanjo]

Thank you for that reply. I would appreciate any additional opinions/comments, if available. Its not likely I can convince the driver to come forward and witness, which troubles me. Im a nurse, this will significantly affect my nursing license, my job, etc....in addition to the DMV and court proceedings. I got stuck in custody 3 days before I could reach someone to post bond, it was a nightmare.

As it is, I may be terminated from my job. I missed 3 days of work with no call to the office. They said I cant come in Monday, and had to make an appointment to talk to Human Resources on Tuesday before I could resume. That, to me, says I'm fired. Im a wreck.

No to whine....but to top it off, a neighbors kid took my car for a joy ride while I was custody, crashed into another car, and ran....now my car is in police impound for evidence....like I needed to add THAT on top of everything else. (yikes). I just want to cry.

 

[justalayman]

Thank you for that reply. I would appreciate any additional opinions/comments, if available

. Its not likely I can convince the driver to come forward and witness,

if it gets to court you can. Prior to that, no.

No to whine....but to top it off, a neighbors kid took my car for a joy ride while I was custody, crashed into another car, and ran....now my car is in police impound for evidence....like I needed to add THAT on top of everything else. (yikes). I just want to cry. :

how did neighbor kid get the keys? Did you report the STOLEN car to the police?

 

[davew128]

It sounds like you were arrested for the DUI. Why you waited this long to get an attorney is beyond me.

 

[davew128]

how did neighbor kid get the keys? Did you report the STOLEN car to the police?

Assuming the OP is on the level, she was in custody when the car was stolen. Otherwise I smell an attempt to pass off smashing her car because she was drunk.

Personally, I worry about nurses who get drunk. Its not people's lives are in their hands.

 

[CdwJava]

What is the name of your state (only U.S. law)? CALIFORNIA

I was driven home after seeing friends in a bar. A DD drove my car to my house and parked, another friend drove me home, then they left in the second vehicle. I entered my home, and went back out shortly after to walk the dog. A police officer was near my car, and questioned me about driving/drinking/etc. I told him I wasn't, explained the situation. He proceeded to field sobriety test. Says a witnessed called in suspecting drunk driver, and followed my car to my home. The officer never saw me in my car or driving my car.

I was over the limit, that's why I was driven home. Im not debating the drinking. Im debating the validity of a witness who claims I was driving. It was 3 am, pitch black....if someone was following my car, they wouldn't be able to see who was driving....let alone describe me, which the officers claim in their statement.

Is this legal? Do they even have a case? If its defendable, do you think its pretty solid? Any advice? Please help, I have court in a few days. Thank you.

Sure, they have a case. How good it is, we cannot possible know.

Your attorney would be able to wrap this up easily - give him the name of the DD and/or friend that drove or followed you home.

If the witness could not identify the driver, that presents a heck of a problem. Though if he followed the car and observed only one person in the car - in the driver's seat - you have some trouble. And if you are unable to identify the mystery DD or the other friend, you may have a credibility issue. The "mystery driver" story is used a lot (As in ... A LOT!). And a judge or jury is not likely to keep a straight face if you claim not to know who drove you.

I believe the cop has to observe you driving for the charge to stick

No. Not in CA anyway. Driving generally has to be observed by someone, but there are exceptions even to that.

 

[CdwJava]

Thank you for that reply. I would appreciate any additional opinions/comments, if available. Its not likely I can convince the driver to come forward and witness, which troubles me.

That is the beauty of a subpoena - they will be compelled to appear! Give the name to your attorney and they will be ordered to court.

Do they not want to appear because they were also impaired?

Im a nurse, this will significantly affect my nursing license, my job, etc....in addition to the DMV and court proceedings. I got stuck in custody 3 days before I could reach someone to post bond, it was a nightmare.

You were not released O/R when you sobered up? How odd ... is the ONLY charge you face VC 23152(a) and/or VC 23152(b)?

No to whine....but to top it off, a neighbors kid took my car for a joy ride while I was custody, crashed into another car, and ran....now my car is in police impound for evidence....like I needed to add THAT on top of everything else. (yikes). I just want to cry.

How did they steal your car? I imagine that you reported it stolen?

 

[justalayman]

No. Not in CA anyway. Driving generally has to be observed by someone, but there are exceptions even to that.

I thought you had said it had to be observed. I recall a thread where a guy dumped his car into the ditch and walked away from it and you said he could not be charged since the cop did not see the person in the car. Maybe I'm recalling it incorrectly or maybe you were referring to the situation as such since there were no witnesses.

 

[CdwJava]

I thought you had said it had to be observed.

It generally does - just not always by the officer. The OP said there was a witness who saw the vehicle moving. The identity of the driver will be an issue the defense can bring up. Unless the OP admitted to driving, or the witness can identify the driver, there could be reasonable doubt here. Ultimately, we don't know what the witness saw. if they saw one person driving the car, that can be sufficient - especially since the OP claims to have been in the car as well.

I recall a thread where a guy dumped his car into the ditch and walked away from it and you said he could not be charged since the cop did not see the person in the car. Maybe I'm recalling it incorrectly or maybe you were referring to the situation as such since there were no witnesses.

In the case of a car in the ditch that is an exception to the observed driving rule. Being found in and around the scene of a collision is one of those exceptions. The state still has to show impairment, however.

Vehicle Code section 40300.5 provides that an officer is permitted to make a DUI arrest when they have probable cause to believe that the person has been driving while under the influence and the person:

- was involved in a "traffic accident"; or
- is in or about a vehicle that is obstructing a roadway; or
- will not be apprehended unless immediately arrested; or
- may cause injury to himself or herself or damage property unless immediately arrested; or
- may destroy or conceal evidence of the crime unless immediately arrested.​

I'm afraid I don't recall the specific post you might be referring to ... but, I probably did state that driving generally has to be observed. I may not have articulated that there are a few exceptions to this. But, in this case, there appears to be a witness who saw the vehicle moving ... whether that will be enough to sustain a complaint against the OP, I can't say.

 

[Kimfrkeanjo]

Thank you for everyone's replies. Some clarification to questions posted: No, I did not crash the car. I wasn't driving the night I was arrested. I was in custody and hadn't been released yet, my neighbor's daughter took my keys and went for a joyride. That's a whole other drama. She babysits for me, Im friends with her family.

Regarding my case: The reason I wasn't released the next day OR was because I was late on a payment arrangement on a previous court case, so they held me until I made bail or had an arraignment. I didn't have access to a phone for 2 days, so I didn't get bail posted. I had the arraignment and pled not guilty. Now pending a hearing.

I may be able to get the other driver to come forward, im working on it. They aren't cooperative right now because they have legal issues as well, and are afraid they will be held on them. It wouldn't matter if they were drunk or not that night, the cops wouldn't be able to prove it now.... Im hoping if I can get a couple of continuances it will give them enough time to get their
case(s) in order so they can testify on my behalf, without fear of being charged/held.

[/QUOTE]Vehicle Code section 40300.5 provides that an officer is permitted to make a DUI arrest when they have probable cause to believe that the person has been driving while under the influence and the person:

- was involved in a "traffic accident"; or
- is in or about a vehicle that is obstructing a roadway; or
- will not be apprehended unless immediately arrested; or
- may cause injury to himself or herself or damage property unless immediately arrested; or
- may destroy or conceal evidence of the crime unless immediately arrested.​

[/QUOTE]

None of these scenarios apply to me. No accident, no fear for injury to self or others/property. I didn't have my purse or keys in my possession. I was in my home, went back out to my car to get my charger and found cops there who proceeded to question me. That's it. So, if none of the things mentioned in Vehicle Code section 40300.5 apply, it would seem that the case should be dismissed since the officer did not have grounds to arrest me. Right?




By the way, you people are great. I really thank you for all the comments.

 

[CdwJava]

I may be able to get the other driver to come forward, im working on it. They aren't cooperative right now because they have legal issues as well, and are afraid they will be held on them. It wouldn't matter if they were drunk or not that night, the cops wouldn't be able to prove it now.... Im hoping if I can get a couple of continuances it will give them enough time to get their case(s) in order so they can testify on my behalf, without fear of being charged/held.

It won't matter with a subpoena. They will have to come to court. However, whether they will tell the truth or not is another issue. If they say they did not drive your car, well ...

None of these scenarios apply to me. No accident, no fear for injury to self or others/property. I didn't have my purse or keys in my possession. I was in my home, went back out to my car to get my charger and found cops there who proceeded to question me. That's it. So, if none of the things mentioned in Vehicle Code section 40300.5 apply, it would seem that the case should be dismissed since the officer did not have grounds to arrest me. Right?

Uh ... there is the statement of a witness. THAT can be sufficient for the arrest. Whether it would be enough for a conviction depends on what the witness saw, what the officer saw upon contact, and what you stated when you were contacted.

Did you give the officers the name of the mystery driver and friend? If not, why not? And, if you didn't, the prosecution will be even more suspicious. As I mentioned, the "mystery driver" scenario is a common ploy and one that meets with a great deal of skepticism.