The prosecution must prove all of the elements of a crime beyond a reasonable doubt. In a DUI case, one of those elements is “driving” or “operating” a vehicle. This means a person has to have a level of control over the vehicle. Some of the questions that arise involve (a) whether the vehicle was actually moving; (b) whether the engine was running; and whether the individual was sitting behind the steering wheel. In much rarer situations the prosecution might even argue a  passenger can be considered “in control” if they grab the steering wheel or try to take control of the vehicle and were deemed to be under the influence of alcohol.

Another element of the DUI offense involves “motor vehicle.” While any product or means for transporting people or goods can arguably be deemed a vehicle. by contrast, a motor vehicle requires it be powered by a motor. Accordingly, cars, trucks, motorcycles, and motor boats are common examples. Another issue that can be raised is whether the vehicle was inoperable and immobile. Although earlier case law required the vehicle to be operated “on a public highway,”  a DUI can be charged against a  person who drives on private property, including parking lots.

The Purpose of DUI Laws

Government seeks to prevent operation of a motor vehicle when an individual is too intoxicated to have “adequate control” and, therefore, the element of intoxication is established by (a) showing a certain level of blood alcohol (BAC) or illegal drugs in the driver’s system; or (b) showing the individual was impaired. The BAC is not what the police or sheriff observed, but the results of a blood or breath test.

In California,  the “implied consent” law requires everyone who operates a motor vehicle to give consent to be tested for alcohol in his or her system if they are suspected of driving under the influence.

What is .08 BAC?

Anyone who tests with a BAC over .08 or has the presence of drugs is deemed  legally intoxicated. As noted above, there are many ways to defend a case and to challenge the charges including a failure in the test procedure, such as a malfunctioning machine, an improper sample, foreign substances in the mouth (in the case of a breath test), or improper preservation of the evidence (commonly referred to as chain of custody).

Was the Driver “Impaired?

Another way to obtain a DUI conviction is by proving impairment based on the facts and circumstances surrounding the incident.Here, the officer’s testimony, statements of the defendant, and circumstantial evidence are used to establish the crime. This is in contrast to  the actual amount of alcohol in one’s blood, which may be deemed irrelevant if the evidence shows one’s ability to drive has been impaired.

The most common test used by law enforcement to establish a driver was impair es is to have him or her perform a “Field Sobriety Test” (FST).  Here, the officer asks you to close your eyes, standing with your arms held out from your body and touch the tip of your nose; to walk a straight line with one foot in front of the other; recite the alphabet; and,  to count numbers backwards. The officer’s own observations in watching a person’s driving is another factor. Remember, the time of the day (late night and early morning hours) and location where you are driving (in the vicinity of a bar or nightclub) as well as areas where young adults frequent and/or reside are likely considerations when law enforcement are on patrol and wish to stop possible DUI offenders.

Impairment may also be evidenced by driving too slow or driving too fast, weaving from one lane to another, and any other violation of law such as going through a stop sign or red light. Unfortunately for drivers, they often are asked and volunteer to answer how much they had to drink and how recently, as this also is used to support testimony regarding the probable effects of the amount of alcohol ingested over a period of time on one’s physical abilities. We are tough smart and know the law. Hence, when appropriate we can exclude this “admission,” by arguing it was obtained unlawfully. The prosecutor will argue you were not a “suspect” at that moment and, therefore, the officer did not have to give the Miranda Warning (requirement that a defendant be admonished to remain silent as anything he/she says can be used against him/her), At Spital & Associates, we will present the opposite arguments to obtain a winning result. For a free attorney consult, send an email or call Sam Spital at 619.583.0350 now.


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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.