Suppose that you are arrested for DUI in California, but the officer didn't actually see you driving. Perhaps you were sleeping in your car, or there was an accident and the police arrive after the fact. Can you still be convicted of DUI without driving?

The answer, like many, is “it depends.” If you never drove the vehicle and the police cannot prove otherwise, then you are in the clear. However if it is merely a case of the police not directly witnessing you drive, things get more complicated in a hurry.

Under California Vehicle Code section 23152 “It is unlawful for a person who is under the influence of any alcoholic beverage or who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

[w]ith regard to the offence of driving under the influence…a ‘slight movement' of the vehicle in the officer's presence has been a determinative factor in concluding whether or not a defendant was ‘driving' in the presence of the officer … On the other hand, where the sufficiency of the evidence to support the judgement is in question, as contrasted with the validity of a defendant's arrest, it is clear that the existence of evidence establishing a ‘slight movement' of the vehicle does not present a problem. In the absence of such direct evidence of ‘driving' the element of ‘driving' may nonetheless be established at trial through circumstantial evidence…” (People v. Wilson)

When the police do not witness the suspect drive the vehicle, the prosecutor can attempt to prove that a person committed a California DUI with circumstantial evidence. Such evidence may include: the vehicle's location at or near an accident site, the hood of the car being warm, keys in the ignition of the vehicle. If such evidence cannot be produced, the case should be dismissed, as you cannot not be convicted of DUI without driving.

I have seen far too many DUI cases where the police had no evidence that my client was the driver of the vehicle, but my client admitted to driving the vehicle when the police asked. As I say in just about every post: you have the right to remain silent. It is up to you to exercise that right.