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    DUI Defense Division

    DUI with No Proof of Driving – The “No Driving Defense”

    Can you get a DUI even if cops never see you driving?

    You are not guilty of DUI if there is no proof of driving.

    Driving is an element of the crime of driving under the influence. At trial, the prosecutor must prove beyond a reasonable doubt both that you were driving and that you were under the influence.

    The “no driving defense” is a common legal challenge to DUI charges. You can use it when no one (including the police) actually witnessed you driving a motor vehicle.

    Not all vehicle crimes are observed by a police officer or other witnesses. This is especially true when there has been an accident or the car breaks down. Law enforcement officers typically do not arrive on the scene until driving has stopped. Often the people involved are no longer in the car.

    If there is a reasonable doubt that you were the one who drove a vehicle, then you are not guilty of a crime involving driving.

    To help you better understand the “no driving” defense, our California DUI attorneys discuss the following, below:

    happy elderly couple on motorized scooter with their hands in the air

    Under California law, you “drive” by moving a vehicle of your own volition.

    1. What is the meaning of “drive”?

    Under California law, you “drive” when you move a vehicle of your own volition.2 This means that putting the car in drive accidentally or “back seat” driving does not count.

    Here are some other ways in which the meaning of “drive” may not be obvious.

    Distance Required

    Under California law, you do not need to move a vehicle very far in order to drive. Even a few inches is enough.3

    The Vehicle Need Not Be in Gear

    A vehicle does not have to be in gear for you to drive it. Merely putting a car in neutral and letting it roll a short distance can count as driving.4

    Example: Kelly goes out drinking at a bar with several friends. After she leaves the bar, she gets into her car and tries to put the transmission into drive. Because she is drunk, she only succeeds in putting it into neutral. While the car is in neutral, it rolls forward several feet. Because she was actively trying to make the car move, Kelly drove it.5

    but… Let’s say that instead, Kelly falls asleep in the car. In her sleep, she accidentally knocks the gear shift into neutral and the car rolls forward and hits another car. Because she wasn’t deliberately trying to move the car, under California law, she did not drive it.

    The Engine Need Not Be On

    A vehicle’s engine does not need to be on for you to be considered driving it. For instance, you might intentionally put a car into neutral in order to roll it down a hill. Or you might turn an engine off and coast. This would still count as driving.6

    Example: Bill’s truck stalls while he is on the freeway. Rather than pulling onto the shoulder, Bill coasts in his lane of traffic and tries to restart the truck while it’s still moving. Even though the engine is off, by continuing to steer and control the truck, Bill is driving under California law.7

    Steering Alone Is Enough

    Under California law, you drive when you steer a moving vehicle. This is true even if someone else is in the driver’s seat and operating the accelerator and brakes.

    Example: Omar is driving himself and his friend Perry in an unfamiliar neighborhood. Perry offers to steer while Omar gets directions on his phone. While they are proceeding in this fashion, Perry sees a motorcycle coming towards them.

    Believing he can safely do so, Perry makes a left turn to avoid the motorcycle. However, Perry is drunk and hits the motorcycle instead. Even though he was just steering, Perry was driving under California law.8

    Just Sitting in the Driver’s Seat Is Not Enough

    Just sitting in the driver’s seat with the engine running does not count as driving. In order to drive, you must actually move a vehicle.

    inebriated man slumped over the wheel of car - it is a common defense to DUI charges that no one actually witnessed the person driving

    Under California law, just sitting in the driver’s seat with the engine running does not count as driving.

    Example: Mitchell leaves a party after consuming several glasses of scotch. When he gets to his car, he realizes he is drunk and decides to “sleep it off.” He starts the car so that he can put on the heat. Then he falls asleep.

    A short while later, a police officer sees Mitchell asleep in the running car. He knocks on the window and wakes Mitchell up. Mitchell exhibits signs of being drunk (slurred speech, the smell of alcohol, etc.). But because Mitchell didn’t move the car, he wasn’t driving.9

    2. Can DUI be charged if there was no proof of driving?

    A prosecutor must be able to prove in court that you drove a vehicle while intoxicated. It is not always necessary that the police saw you drive with their own eyes.

    Whether or not you drove is ultimately a question of fact for the jury.10 Proof can be made by either direct or circumstantial evidence.11

    Direct Evidence

    Direct evidence of driving might include:

    • Testimony by an arresting officer or a witness who saw you drive,
    • Traffic camera photographs of you behind the wheel at the time the offense occurred, or
    • Your statements or admission that you drove.

    Circumstantial Evidence

    Sometimes there is no direct evidence that you were the one who drove the vehicle. This often happens after an accident. In such a case, the prosecutor will need to rely on circumstantial evidence in order to secure a conviction.12

    Circumstantial evidence usually consists of a combination of circumstances.13 The question is whether a jury can reasonably conclude – from the totality of all available evidence:

    1. That someone drove the vehicle, and
    2. That the person who drove was you.

    Let’s take a closer look at each of these two types of evidence.

    Someone Drove the Vehicle

    The prosecutor will often argue that the vehicle could not have gotten where it was unless someone drove it there.

    Examples:

    • A car is parked in the middle of the street, straddling the traffic lanes and facing generally at a right angle to the street;14 or
    • A car is parked at an angle on the shoulder of the freeway, a mile from the on-ramp, with the left rear portion of the vehicle protruding into a lane of traffic.15

    The Person Who Drove the Vehicle Was You

    Often, the only evidence that you were the motorist is the absence of other possible suspects.

    Examples:

    • Someone witnesses a crash and sees you thrown from the vehicle. When she rushes over to see if everyone is alright, you are the only person anywhere near the car.16
    • The police see a car parked facing the wrong direction on the freeway. When they go to investigate, they find just one person – you – asleep in the driver’s seat.17 (See our article on whether there is probable cause to arrest someone for DUI in a parked car.)
    • Two people see a car crash into a tree. They both testify that they saw only one person – you – in the vehicle.18

    But… in some cases, it may be possible that you were in the vehicle, but not visible to a witness.

    Examples:

    • You were asleep in the back seat.
    • You were reclining all the way back in the passenger seat.
    • You were in the passenger seat but bending over so that they could not easily be seen by onlookers.19

    When there is evidence that there was more than one person in the car, there might be reasonable doubt as to which was the driver. It all comes down to what the jury believes.

    Example: After an accident, police find Jay unconscious on the pavement on the driver’s side of the vehicle. There are two hats and a half-filled bottle of wine in the back seat. From that evidence, the jury could infer that someone else had been driving and that Jay was in the back seat with the bottle of wine.20

    3. When does the “no-driving” defense apply?

    DUI is not the only offense that requires proof that you drove.

    Here are some examples of crimes to which the “no driving” defense might apply:

    4. Is there an exception for emergencies?

    At least one California court has carved out an exception for moving a vehicle in an emergency. In that case, a drunk man got into a car that had been in an accident, solely so that he could move the car out of traffic and safely park it.

    The car was disabled and could not have been driven very far. The court held that by taking the car away from traffic, not into it, the man’s actions did not amount to driving and therefore did not support a DUI conviction. It did not matter that his blood alcohol concentration (BAC) was above the legal limit.10

    Additional Resources

    For more information, refer to the following:

    1. Alcoholics Anonymous – 12-step program for overcoming alcoholism.
    2. Drunk Driving Overview – NHTSA page on drunk driving statistics and prevention.
    3. Impaired Driving: Get the Facts – CDC fact sheet on impaired driving.
    4. Driving Under the Influence (DUI) – California DMV page on driver license suspension for DUIs.
    5. MADD – Non-profit organization devoted to stopping drunk driving.

    Legal References:

    1. See Judicial Council of California Criminal Jury Instructions (CALCRIM) 2110. Driving Under the Influence (Veh. Code, § 23152(a)): …To prove that the defendant is guilty of this crime, the People must prove that:1. The defendant drove a vehicle…”
    2.  California Vehicle Code 305 VC (“A ‘driver’ is a person who drives or is in actual physical control of a vehicle. The term ‘driver’ does not include the tillerman or other person who, in an auxiliary capacity, assists the driver in the steering or operation of any articulated firefighting apparatus.”). See also CALCRIM 2241. Driver and Driving Defined (Veh. Code, § 305): “[A driver is a person who drives or is in actual physical control of a vehicle.] [A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight.]”
    3. Padilla v. Meese (1986) 184 Cal.App.3d 1022.
    4. Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, (“If the driver does not move the vehicle in the officer’s presence at least a few inches, the offense of driving under the influence has not occurred in the officer’s presence.”). See also Henslee v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445, in which an officer found the defendant sleeping in the driver’s seat of her vehicle with the motor running and lights on. The vehicle was parked facing the wrong direction in a traffic lane. When the officer woke her, she affirmatively put the car’s transmission into drive, causing the car to move forward several inches. The court held that on these facts, the defendant “drove” her vehicle while in the presence of the officer.
    5. Facts based on Henslee v. Department of Motor Vehicles, endnote 4, at 451 (“[T]he term ‘drive’ within the meaning of this code section includes the situation where, as here, an intoxicated individual actively asserts control over a vehicle and takes every step necessary to resume travel along the public road.”).
    6. People v. Jordan (1977) 75 Cal.App.3d Supp. 1, 142 (holding that a person is “driving” when he or she is steering or controlling a vehicle that is in motion, even if the motor is off at the time.).
    7. Facts based on People v. Hernandez (1990) 219 Cal.App.3d 1177, (“While the truck was in motion and Hernandez maintained control of it, he was posing a threat to public safety and thus, was driving within the meaning of section 23153 [DUI causing injury].”).
    8. Facts based on In re Queen T. (1993) 14 Cal.App.4th 1143. But see California Vehicle Code 305 VC: The term “driver” does not include the tillerman or other person who, in an auxiliary capacity, assists the driver in the steering or operation of any articulated firefighting apparatus
    9. Facts based on Mercer v. Department of Motor Vehicles, endnote 4 (holding that a warrantless arrest for misdemeanor DUI was not lawful under such circumstances because the officer did not see the driver’s vehicle move). See also People v. Engleman (1981) 116 Cal.App.3d Supp. 14, (holding that a warrantless DUI arrest was unlawful where peace officers had found the defendant asleep at the wheel of his car parked with its engine running on the shoulder of a state highway.”). See also Music v. Department of Motor Vehicles (1990) 221 Cal.App.3d 841, (holding that defendant who was slumped over the steering wheel in a parked car, in a parking stall in front of a bar, did not drive when he accidentally hit the gear shirt after an officer woke him up, but the officer turned off the car’s engine before it could move.).
    10. People v. Quarles (1954) 123 Cal.App.2d 1, 266 P.2d 68.
    11. Mercer v. Department of Motor Vehicles, endnote 4.
    12. See same (“We do not hold that observed movement of a vehicle is necessary to support a conviction for “drunk driving” under section 23152. The lower courts have routinely upheld such convictions in the absence of evidence of observed movement of a vehicle.”).
    13. See People v. Hanggi (1968) 265 Cal.App.2d Supp. 969, (“From the combination of circumstances — defendant’s sitting in a vehicle in the center of the street-behind the wheel-engine running-lights on, it can be inferred that defendant must have placed himself in such position, and that he accomplished this by driving the car to the place at which he was found.).
    14. Same.
    15. People v. Wilson (1985) 176 Cal.App.3d Supp. 1 9.
    16. People v. Quarles, endnote 11 (holding that evidence supported conviction where witnesses testified they saw a car with a single occupant, and that defendant was the only one in the vicinity of the car at the scene of the accident).
    17. People v. Wilson, endnote 16. (Upholding drunk driving conviction where a defendant who was found asleep in the driver’s seat was the sole occupant of the vehicle, and there was abundant evidence that he had been drinking prior to stopping his vehicle on the shoulder of the freeway).
    18. People v. Quarles, endnote 11.
    19. See same. (“The fact that witnesses had seen only the driver in the Buick when the car passed them was not conclusive evidence that there had been only one man in the car due to the fact that when the top of a 1941 Buick convertible is up an outside observer cannot determine whether or not a person is in the rear of the car.”).
    20. Facts based on People v. Quarles, endnote 11; however, in that case, “three witnesses, who appeared at the scene immediately following the collision, testified that they saw no other person in or about the Buick. Hence the trial court reasonably concluded that the defendant, and he alone, was the operator of the Buick at the time of the accident.”

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