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A no drive defense could apply in your DUI case if the officer(s) that arrested you did not observe you drive.  Most States make it a crime to operate or be in control of a vehicle while under the influence or above a 0.08%.  That could mean you’re guilty just sitting in the car with the radio on or sleeping it off in a parked car.  In California, driving is an essential element of the charge.   A collision that results in a DUI arrest might have resulted even if an officer did not observe the collision or observe any driving at all.  California Vehicle Code Section 40300.5 gives the authority to an officer to make an arrest if there is a suspicion any person involved regardless of who was at fault was under the influence of alcohol or any drug.  This law also gives the authority to a police officer, CHP officer or sheriff deputy to make an investigation and possibly an arrest if a person is stranded on the road and appears to be in need of assistance, or if the location of the vehicle is a danger to others on the roadway or highway.


The act of driving in the eyes of the law means whether there was volitional movement or the slightest movement of the vehicle. (Mercer v. DMV (1991) and People v. Garcia (1989).  In some cases there is no collision but a person is arrested for being parked on the side of the road with their emergency lights on.  DUI arrests can also occur when someone is parked in a lot and “sleeping it off.”  These are cases that could use the attention of an experienced attorney from the Law Offices of Barry T. Simons.  You may have a no drive defense that could avoid serious consequences including, jail time, fines, and/or community service.


California Vehicle Code Sections 23152(a) & (b) both share the same element for each crime.  The element of driving.  An important aspect of the prosecution’s case and the case at the DMV is when you drove.  The Vehicle Code provides an inference that allows a finding that your alcohol level was above a 0.08% at the time you drove if a chemical test was administered within (3) hours of your driving which produced a level of 0.08% or above.   If they can’t prove the time of driving, they don’t get the inference!  Similarly, if a prosecutor at the criminal proceedings or an administrative hearing officer for the DMV cannot determine if the person arrested was actually driving then there may be a strong defense to win your case.


The law office of Barry T. Simons has skilled staff and attorneys that can carefully review traffic collision reports, arrest reports, and DMV reports to determine whether there is a no drive defense that could win your case.




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Board Certified In DUI Defense NCDD (1 of 6 In California)

Specialist Member/Board of Directors CDLA

Selected Only OC DUI Super Lawyer 2014-2017

OC Metro Top DUI Attorney

Rated Preeminent By Bar Register

AVVO 10 Top DUI Lawyer

By Barry T. Simons: “It is my honor and privilege to fight for my clients; challenge unjust laws; protect our Constitution and to be a thorn on the side of injustice”.

By Barry T. Simons: “It is my honor and privilege to fight for my clients; challenge unjust laws; protect our Constitution and to be a thorn on the side of injustice”.