Can I be charged and convicted of a DUI in San Diego even if I was not seen driving?

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While an arrest can be made for any alleged crime, it is important to know whether the officer had probable cause to make the arrest. It is also important to consider whether the prosecuting agency has sufficient evidence to prove the charge.

California law allows the officer as well as the prosecutor to rely on circumstantial evidence that the vehicle had been driven while the driver was impaired or with a BAC (Blood Alcohol Concentration) of .08 or more. Often, if a driver is found sleeping in the car on the road, the officer will conduct a welfare check. If alcohol odor is found emanating from the car or driver, an investigation can be attempted.

Police officers and prosecutors use various tactics to show that the vehicle was recently driven within the time frame when the defendant was over the legal limit. For example, the officer may note that the hood of the vehicle was warm to the touch in an attempt to prove that the car was driven recently when the contact was made with the alleged drunk driver.

Often, the prosecution determines the time of driving through the defendant’s own statements. So, stay quiet and listen to your attorney.

Highly skilled San Diego criminal defense attorneys will fight on every front, from the moment of the arrest.

Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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