“No Drive” Defense

In every DUI case in California, a driver accused of DUI will face criminal court charges (often under CVC 23152) and an administrative license suspension through the California DMV. Knowing how to handle these properly means knowing what defenses will work to keep the driver out of jail and save their license. An important element that must be proven in either criminal court, or at the DMV during a DUI “Administrative Per Se” hearing is the fact that the driver was in fact driving a car in violation of California’s DUI laws.

Criminal Court No Drive Defense:

In criminal court, the driver is charged by prosecutors under CVC 23152, which says “no person shall drive a motor vehicle while under the influence of drugs or alcohol.” Driving is defined as causing a motor vehicle to move under it’s own power, while “under the influence” is loosely defined as being impaired by the intoxicating effects of alcohol or drugs to a degree that causes the driver to become unsafe.

If the prosecution cannot establish there was actual driving, person accused with DUI can avoid criminal liability because there is no DUI crime without driving.

In criminal court, the burden of proof is on the prosecution to prove each necessary element of their prosecution beyond a reasonable doubt. This means there must be evidence that shows each element the prosecutor is trying to establish.

No Drive Defense at DMV:

In the DMV, the burden of proof is on the DMV to show, by a preponderance of evidence, that the driver was lawfully arrested on a California roadway while driving with a measured blood alcohol concentration at or above 0.08% at the time of driving.

Even though the burden if proof is lower, there is a necessary showing that must be made: the driver must be shown to have been driving at the time of the arrest or at the time of the alleged impaired driving.

Posted in DMV Defenses, DUI Defenses.

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