DUI With no driving
Question: I was arrested the other day in San Fernando for DUI. I was leaving a restaurant walking with my daughter when the officer approached me. The officer did not see me driving. The basis for the DUI was that a witness saw me driving. Can there be a DUI with no driving.
Can I be forced to give a breathalyzer if I’m not in the vehicle and the police did not see me driving? My first blow registered a .07. They calibrated the device and I blew again with a .113.
I did have to go home to get my wallet. I live so close I thought I would be gone for about 10 minutes. I left my daughter there and told the cashier that I needed to get my wallet. I realize I messed up. This is my first time in trouble. I have no other arrests or anything like that.
Answer: To answer your question, if the officer has reasonable suspicion to believe that you drove under the influence of alcohol, the officer can request you to perform a breath test.
A breath test before you were arrested is called a Preliminary Alcohol screening test. I am speculating that that is the test you are referring to with the results you posted, but would like to talk to you further about it. Whether or not it is considered mandatory would depend on a couple factors. For example, were the breath tests pre-arrest, or post-arrest. Did you blow into a machine pre-arrest, post arrest, or both? Did they only have you blow into the machine 2 times?
As far as what you wrote, the breath tests can be challenged as the results you posted would be unreliable and not compliant with title 17. For example, if those were the only two results from that particular machine, I feel confident that I could establish those results are unreliable and not enough to establish you were a .08 at the time of driving.
Also, the entire driving factor could be a strong defense point. The fact that the officer never actually saw any driving can be very beneficial in defending DUI cases on several levels.
I am a bit unclear of exactly what happened with your situation. You wrote that you were leaving the restaurant walking with your daughter. In another line you wrote that you left your daughter there to go home to get your wallet. I realize the witness saw you driving. What I am unclear of is exactly why that witness called the cops in the first place.
To your knowledge, were the cops called because the witness saw poor driving or other indicators that you were under the influence while driving? Or were the cops called because you left your daughter at the restaurant?
Further, how old is your daughter? There could be additional charges for child endangerment on top of the DUI charges.
Do not answer those questions on a public website like this, but those are questions your DUI attorney will likely have for you, amongst many others.
Call me at (818) 336-1384 to discuss your case in more detail for a free consultation. There are many variables in DUI cases, and more information would be necessary to give more concrete answers to your questions.
San Fernando DUI attorney
DUI and Criminal defense in Los Angeles and surrounding counties.