Question: Can an officer arrest me (and can I get convicted) for a San Diego DUI if they do not see me driving?
This is a common question because people believe the officer needs to see someone driving to prove the charge. The quick answer is they do not need to see driving. However, when the police do not see driving they often make assumptions that result in an improper investigation.
The jury instructions state driving can be proven by both direct evidence (such as the officer or someone else seeing the person drive), or by CIRCUMSTANTIAL evidence. When the person is on the side of the road, the evidence will likely fall under the latter. This can be shown through a multitude of facts such as: who the owner of the vehicle is, how the seat was situated, if the person was in the driver’s seat, if there was anyone else in the vehicle or if the person was alone if there are any seatbelt marks, etc.
Officers make contact with vehicles on the side of the road for many reasons. If someone is stopped on the side of the freeway (unless it is an emergency), the the officer can stop that person for violating CVC 21718. If the person is on the side of the road or freeway, the officer can always make the stop to do a welfare check. Call the (858)751-4384 for a free case evaluation.
Rush to Judgment
I was a prosecutor for almost ten years. When the officer contacts a vehicle on the side of the road, they will believe there is a possible San Diego County DUI if there is indication alcohol may be a factor. The officer tries to smell for alcohol. They look for red and watery eyes. They will see if you are dressed like someone went out for the evening. If any of these (and other) factors are present a person will be asked, “have you had anything to drink tonight”? The officer begins a San Diego County DUI investigation. Often these investigations are “Rush to judgment.” They are checking someone’s eyes as headlights are buzzing by at 75mph past someone. They ask someone to stand on one leg while the road is often full of debris and usually on a slope. Are these fair and objective tests? No way. These “clues” often validate the judgment the officer made once they asked someone what they had to drink. This usually results in a person getting arrested for a San Diego County DUI. Call the law office of Mark Deniz now at (858)751-4384 for a free case evaluation.
The fact an officer arrests someone for a San Diego DUI does not mean the prosecutors will follow through. While an officer can arrest when they have probable cause, a prosecutor should file charges when they believe they can prove charges beyond a reasonable doubt. Prosecutors are very aggressive and passionate about San Diego DUI cases, so they will usually error on the side of issuing charges on a case. It is communicating with them and showing that the case does contain reasonable doubt. It is best to do this before the case gets into court. If they do issue charges, then the discussions with the prosecution are handled in the formal pretrial conferences.