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CrimDefense, CriminalDefenseAtty
Category: Criminal Law
Satisfied Customers: 28364
Experience:  10+ years defending Misdemeanor and Felony cases.
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I was not driving and have been charged with a dui

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I was not driving and have been charged with a dui
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good morning. If you were not driving, where were you when the officer came into contact with you? Were you sitting in the drivers seat? Where were the car keys?
Hi, I just wanted to follow up and see if you had a chance to respond to my information request above. Thank you.
Customer: replied 4 years ago.

no I was not in my car!

In order to convict you of driving under the influence, the prosecutor must prove the following two facts (otherwise known as "elements of the crime"):

that you drove a motor vehicle, and

that you were under the influence of alcohol and/or drugs at the time you drove.

In regard to the fact that you were not driving, California courts have held that some movement of the vehicle is required in order to constitute driving. And courts have further held that this movement may be proven by circumstantial evidence. Circumstantial evidence is any evidence that doesn't directly point to guilt, but can be inferred from the surrounding circumstances. If this is not present, there may be a motion to dismiss the case, if the prosecutor can not meet and prove the basic elements of the crime. If you are unable to retain private counsel, you need to request the services of the public defender. They will make a demand for discovery and see the evidence which the State has and is going to use against you. If there is no evidence to show you were driving or in actual or physical control of the vehicle, then the case would need to be dismissed since the State could not proceed in good faith, without anyone being able to place you behind the wheel of the vehicle.

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Customer: replied 4 years ago.

I was at the general store and I said hi to the officer, my mistake.....while I was detained I was not allowed to take my seizure medicine which clearly states dizziness and drousiness! Or given my phone call what should I do? my father is a retired police officer and has gone over my documents....he said there is no case and the police officer wrote up everything wrong....with no proof of any vilation!

I think you need to retain private counsel or if you are unable to afford it, ask to be appointed the public defender. It sounds as though there are motions to be filed and work to be done and the DA will likely see that is no basis to proceed and they are not even able to prove a crime occurred, since they can not place you behind the wheel of the vehicle. Walking out of a store alone, without getting into your car or without the officer seeing you drive it, is not a basis to charge you with a DUI.