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 drunk or on drugs, it’s obvious that you were driving under the influence. But what about cases where police only interview you later? In these cases, “drinking after driving” is a potential DUI defense.
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. You may have been intoxicated by the time officers found you, but you were not intoxicated when you were driving.
This defense relies on two important facts:
- Only driving under the influence is illegal. Both of California’s DUI laws, 23152(b), only criminalize being impaired while driving. It is not illegal to be impaired in your home, in a parked car, or even (for the purposes of DUI) on the side of the road. Drinking after you stop the car is not a DUI.
- Officers cannot tell when you started drinking. If 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 drunk to start with or if you started drinking after the accident.
What are examples of how the drinking after driving defense would work?
Here are three examples:
- 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 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 have 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 police arrive, they see him drinking and arrest him for DUI—even though he may not have been drinking behind the wheel.
All of these are cases where a DUI lawyer could build a strong “drinking after driving” defense.
Will I get in trouble for admitting I was drinking?
It depends on the circumstances. In Example #3 above, for example, the man could be convicted of an Open Container violation, because he had a flask of whiskey in his vehicle, or even Public Drunkenness for drinking along the roadside. And the man in Example #1 could be convicted of a hit and run charge, not involving drinking, even though he didn’t know he hit someone. All of these charges, however, 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 in order to avoid a life-changing DUI.
Can I use this defense for a drug-related DUI?
Yes. The same principle applies to DUI charges involving marijuana, painkillers, or any drug (legal or illegal): if you can cast doubt on whether you were on the drug while driving, you may have a strong defense.
The tradeoff with “drugs after driving,” however, 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. This is almost always better than a drug DUI charge, however.
How strong is this defense? What evidence do I need?
Whether this 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 originally denied drinking and later changed your story.
Used properly, the drinking after driving (or drugs after driving) defense is powerful. It could cause the entire DUI charge to be dropped, in some cases without even going to trial.
Have you been charged with DUI? We can connect you with an experienced Los Angeles DUI lawyer and get you a FREE consultation. Fill out the form to the right or call (310) 862-0199 and get your free consultation today.
