– DUI Without Driving

Last Modified: August 10, 2023

DUI Without Driving

In the state of California, ‘driving under the influence’ has an expansive legal definition. Though many people don’t realize it, they can be charged with a DUI without driving in San Jose and all across the state of California. In order to be considered a DUI, the arresting officer must be able to prove that the individual in question was actually operating a motor vehicle. With the help of San Jose DUI lawyers from Summit Defense, you might be able to disprove this contention before the police can prove it. This could consist of moving the vehicle a mere few inches or feet (a ‘slight movement’) or other circumstantial evidence that would suggest that the accused was, indeed, operating a motor vehicle while intoxicated.


The precedent for the ‘slight movement’ concept is Music v. Department of Motor Vehicles (1990) 221 CA3d 841, 850, 270 CR 692. In this case, it was determined that a ‘slight movement’ constitutes ‘driving’ because it leads, logically to evidence of ‘volitional movement’ of the said vehicle. The CA Vehicle Code (§23152) requires that a person must voluntarily and knowingly move and/or operate a motor vehicle in order to be arrested for a DUI. But, in Music v. Department of Motor Vehicles, the individual in question was merely sitting in the driver’s seat of his running car in a parking space. He may have even been asleep. Because Mr. Music did not actually move the car at all during the time that the arresting officer observed him, the arrest was determined to be illegal.


In other circumstances, like that of People v. Gapelu (1989) 216 CA3d 1006, 1009, 265 CR 94, a sole person was found intoxicated at the scene of an accident and had injuries that were consistent with having been the driver. In this case, there was little evidence this lone person could not have been the driver and, as they were intoxicated, the obvious conclusion to make is that this person had committed a DUI offense. However, it was decided in People v. Moreno (1987) 188 CA3d 1179, 1186, 1190, 233 CR 863 that, as there were many people at the scene of an accident, there was no way to determine who had been driving the car. A third example is that of People v. McNorton (2001) 91 CA 4th Supp 1, 5-6, 110 CR2d 930, in which a couple was found on the side of the road – the woman sitting in the passenger seat and the man changing a flat tire. As both were intoxicated at the time police officers happened upon them and there was evidence (the fact that there was a flat tire) that the car had been driven up to that point on the roadway, it was not difficult for the police to make the leap that one of the two drove the vehicle to the roadside location. In this case, the only direct evidence that Sandra McNorton drove the vehicle was her own admission to the police officer at the scene. This DUI arrest and conviction was upheld because enough circumstantial evidence suggested that one of the two was behind the wheel before the flat tire occurred. San Jose DUI lawyers from Summit Defense can help you determine if your case qualifies for this type of defense.


In People v. Martinez (2007) 156 CA4th 851, 855-856, 67 CR3rd 670, a man was arrested for DUI, even though the car he was driving was parked at the time. Arresting officers assumed that, as the car was running, had its headlights on, and was facing the wrong way, that one of the only two people in the area must have been driving the car. There were only two people in the vicinity of the car – one was buckled into the passenger seat and the other (Mr. Martinez) was under the influence. This DUI arrest and conviction was upheld because enough circumstantial evidence suggested Martinez drove the vehicle to the location where it was parked with its headlights on and engine running. If you have found yourself in a similar circumstance, contact the San Jose DUI lawyers at Summit Defense and read over the Defense Strategies section of this document for more information.

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