Driving under the Influence: The "D" Stands for Driving
The Prosecutor Must Prove Driving In Your DUI Case.
In California, the “D” in Driving Under the Influence stands for driving. Some states, allow conviction for DUI if you are operating or in control of the vehicle. In California, a DUI requires some ‘volitional movement of the vehicle’.
Do the cops need to see you driving for the arrest to be valid? Yes. Except for limited circumstances outlined in Vehicle Code Section 40300.5, like if you are in an accident or blocking the road, they need to observe you drive to arrest you for Misdemeanor DUI (Penal Code Section 836 requires presence of cops during the Misdemeanor for arrest). If they did not see you drive, you might be able to suppress the Arrest and subsequent tests.
Even in the freedom – destroying cases of US v. Navarette and People v. Welch, where snitches supposedly observed poor driving in the people who were subsequently arrested, the cops themselves observed the Defendants drive. The US Supreme Court in Navarette said an arrest based on no observed bad driving was constitutional because an unidentified informant supposedly observed bad driving and told the dispatcher about it. The same thing happened in Welch, but by the California Supreme Court.
Also, for the breath or blood tests to mean anything, the cops need to be able to determine whenyou were driving. They need to do this because the State ‘criminalist’ will use the voodoo science of ‘retrograde extrapolation’ (retro = back, grade = look, extrapolate = guess) to determine your BAC at the time you drove which is what the law requires.
They can’t do this if they don’t see you actually driving.
FYI: It doesn’t matter if you are seen driving a car on private or public property People v Malvitz.
If the cops didn’t see you driving, your case is defensible because if the Prosecution takes the case to Trial, they have to prove when you drove in order to establish BAC at time of driving. So without a witness to the driving, they can’t prove that. This usually plays out where the cops come upon a one car accident or find someone asleep behind the wheel. As far as they know,the accident could have happened or the person pulled over, hours ago.
Remember, the D in DUI stands for driving. There is an issue of PC 836 presence requirement for a awful Arrest on a Misdemeanor. This should be addressed by a Motion to Suppress. At Trial, the Prosecutor will introduce circumstantial evidence of driving. There is also the issue of Time of Driving. This is an issue with respect to time of driving for the 3 hour presumption and the retrograde analysis that will be used to place your driving at .08 or above. If the prosecutor can’t prove when you were driving then they can’t prove your BAC at time of driving by either method.