Most of the time, when a DUI arrest occurs, it happens moments after you were behind the wheel: either at a DUI roadblock, the scene of a DUI accident, or during a traffic stop. In these circumstances, if the officer discovers you are intoxicated, it’s evident that you were driving under the influence.
But what about cases where police only interview you later? For these kinds of situations, “drinking after driving” is a potential DUI defense. Because you were behind the wheel before deciding to have a drink or two, no laws were broken.
What Is the “Drinking After Driving” Defense?
“Drinking after driving” states that you were sober, or within the legal limit, at the time you were driving. Only later, after you stopped the car, did you begin to drink. Thus, you may have been intoxicated when officers found you, but you were not intoxicated when you were driving.
This defense relies on two crucial facts:
- Only driving under the influence is illegal. California Vehicle Code (CVC) 23152(b) only criminalizes being impaired while driving. It is not illegal to be impaired in your home, in a parked car, or even on the side of the road. Drinking after you stop your vehicle is not a DUI.
- Officers cannot tell when you started drinking. If the police get an accident call and arrive 15 minutes later, and they find you drinking or drunk, they will naturally assume a DUI. But that may not be true. They have no way of knowing whether you were intoxicated to start with or if you started drinking after the accident.
To successfully convict you of a DUI, the prosecution needs to prove you were in the car drunk. If they can’t prove this, then this defense can help you fight against your charges.
Examples of the Drinking After Driving Defense
The drinking after driving defense may seem confusing, but it’s actually straightforward to understand. Here are several examples of how this defense might apply in different situations.
A man is on his way to a bar late at night. On a dark road, he clips a bicyclist who did not have any lights on. All the man hears is a thud, and when he stops and looks in the mirror, he sees nothing and assumes it was an animal.
An hour later, police track his vehicle to the bar and find him there, drunk. The man can claim he only started drinking when he reached the bar and did not drive under the influence.
A woman is driving home from a party. She’s not familiar with the part of town the party was in, and she keeps looking at her phone to check directions home. As she does so, she swerves out into the other lane and almost hits an oncoming car. There is no accident, so she keeps going, but the other driver calls the police and reports a swerving driver.
When the woman gets home, she decides to unwind by having some wine. Forty minutes later, the police show up and arrest her for DUI, but they had no idea when she started drinking.
A man gets into a serious car accident. He is shaken but uninjured; the other driver, however, has an injured passenger. They call 911, but the man begins to feel panicked. He takes out a hip flask and begins drinking whiskey to steady his nerves. When the police arrive, they see him drinking and arrest him for DUI – even though he may not have been drinking behind the wheel.
Will I Get in Trouble for Admitting I Was Drinking?
It depends on the circumstances. For example, in Example #3 above, the man could be convicted of an open container violation under CVC § 23222 because he had a flask of whiskey in his vehicle or even public drunkenness for drinking along the roadside.
In Example #1, the man could be convicted of a hit and run charge not involving drinking, even though he didn’t know he hit someone. All these charges are less severe than a DUI or a DUI hit and run.
The same principle applies to underage drinkers. A driver under 21 will get in serious trouble if they admit they were drinking after an accident or traffic incident. But the penalties for Underage DUI are even more serious. Essentially, the “drinking after driving” defense means you’re willing to risk conviction of a lesser charge to avoid a life-changing DUI on your record.
Can I Use This Defense for a Drug-Related DUI?
Yes. The same principle applies to DUI charges involving marijuana, painkillers, or any drug, regardless of whether it’s legal or illegal. If you can cast doubt on whether you were on the drug while driving, you may have a strong defense.
However, the tradeoff with “drugs after driving” is that you have to admit to using drugs to use this defense. If it was an illegal drug like cocaine, you will likely face some drug charge even if you beat your DUI. Depending on the circumstances, this is usually better than a drug DUI charge.
How Strong Is This Defense? What Evidence Do I Need?
Whether the drinking after driving defense works depends almost entirely on the evidence you can provide. In general, if you were found drunk shortly after a traffic incident, police (and prosecutors) will assume you were driving under the influence.
To claim otherwise, you need evidence. Examples of evidence include:
- Your breath test or blood test shows a low blood alcohol concentration, consistent with starting drinking only recently
- Witnesses saw when you started drinking or saw that you were not intoxicated when you first got out of the car (for this, you will need witnesses who don’t know you)
- You have receipts showing when you purchased the alcohol
- The alcohol flask or bottle you were drinking from is nearly full, suggesting you hadn’t been drinking for long
It also helps if you have a consistent story about your drinking from the first time the police talked to you. If you said immediately, “No, I only started drinking when…” then your story is more credible than if you initially denied drinking and later changed your story.
Avoid Harsh DUI Penalties
The intensity of DUI penalties scales with how many times you got convicted of a DUI. So, the more DUIs you have on your record, the worse the penalties become. Getting charged with a DUI can negatively impact your life in many ways, including:
- Potentially getting rejected for higher education, the military, or a job
- Higher insurance premiums
- Restricted license
- Jail time
- DUI charge on your permanent record
The harsh penalties you can face due to a DUI is the main reason why you should use valid defenses, such as drinking after driving, to help establish your innocence. Above anything, it’s better to avoid these penalties than have to deal with them down the road.
Will I Need a Lawyer to Help Me Win With This Defense?
On a general principle, it’s smart to retain a lawyer regardless of whether you use the drinking after driving defense or not. There are certain cases where drinking after driving is the best defense to use, and there are cases where it isn’t. The only proper way to tell is by consulting first with an experienced lawyer.
Our Los Angeles DUI lawyers can help you with your drinking and driving defense by:
- Gathering critical evidence pertinent to your innocence.
- Consult with experts and witnesses to get supporting testimony in your defense.
- Request additional testing, police records, medical records, etc.
- Represent you and your best interests in court.
- Assess any plea deals offered to you to ensure you get a fair deal.
There’s no need to go about your DUI defense alone. In fact, if you don’t have any strong background in California law, representing yourself puts you at an extreme disadvantage. So, don’t risk facing severe penalties for DUI and hire a lawyer as soon as you can.
Talk to a DUI Attorney Today
Contact our dedicated Los Angeles DUI attorneys today to learn more about what legal options are available for your DUI case. We know that every case is different, and we offer free consultations at no risk or obligation to you. Please don’t hesitate to reach out to us online or over the phone 24/7 to schedule an appointment.