DUIs: Does an Officer Need to Witness Driving?
As a California DUI defense attorney, one of the most common questions I hear is: “Can I be arrested for DUI even if the officer didn’t see me driving?” The short answer is yes—but it’s not always that simple. Here’s a quick rundown of how these cases are typically handled. Keep in mind that driving issues can be complicated in some DUI prosecutions. Questions arise about something called a corpus delicti, but I won’t get into that here.
The Legal Standard: “Driving” Defined Under California DUI Law
Under California Vehicle Code § 23152, it is illegal to drive under the influence of alcohol or drugs. But interestingly, the law doesn’t require that an officer actually witness you behind the wheel at the time of arrest. Instead, the prosecution must prove that you were “driving” while impaired.
California courts have interpreted “driving” to mean volitional movement of the vehicle. So if there's evidence that your car moved, even a short distance, while you were impaired, that may be enough to support a DUI charge.
So When Can You Be Arrested Without the Officer Seeing You Drive?
There are several situations where an officer might arrest someone for DUI without witnessing the actual driving:
Post-Crash Investigations
If you're involved in a traffic accident and the officer arrives afterward, they can still arrest you based on:Your admission to driving.
Witness statements.
Physical evidence (e.g., warm engine, deployed airbags, key in ignition, seatbelt burns).
Car Found Parked
If you're found in a parked car but appear intoxicated, the officer may look for:Signs you recently drove (e.g., car is warm, engine running).
Your position in the vehicle (driver's seat vs. passenger).
Statements you made about how or when you got there.
What the Prosecutor Must Prove
Even if the officer didn’t see you driving, the burden is still on the prosecution to prove beyond a reasonable doubt that:
You were under the influence, and
You were driving the vehicle.
This gives defense attorneys a strategic opportunity. If the prosecution's evidence of driving is weak, it may be possible to challenge the DUI charge entirely or negotiate for a reduced charge.
How a Skilled DUI Defense Attorney Can Help
If you’ve been arrested for DUI in California and the officer didn’t witness you driving, your case is far from open-and-shut. In fact, these cases often present solid opportunities for dismissal or reduction. A good defense attorney will:
Scrutinize the evidence of actual driving.
Challenge any questionable statements or assumptions made by law enforcement.
File appropriate motions to suppress or exclude evidence when warranted.
Facing DUI Charges? Contact Us Today.
If you're dealing with DUI allegations in California—especially under unclear or questionable circumstances—it's critical to speak with a defense attorney like Davis W. Hewitt who knows how to fight back. The Davis W. Hewitt Law Office has helped hundreds of clients protect their record, their license, and their future. Call me today for a free consultation!
