I was given a ride home after drinking at a bar by my friend. His car broke down off the highway, and completely died. We stepped out of the car and opened the hood of the car to see what was going on. My friend then got in the passenger seat to look for his insurance papers which was in the glove department. I sat in the drivers seat, and a minute later a CHP pulled up behind us, gave me a breathalyzer test and charged me with a DUI. Even though i was not driving, he still took me to jail. how the hell am i going to fight this charge?
Note that Mr. Fossum is not licensed to practice in this state and apparently does not understand California law.
In some states -- possibly including Minnesota, where Mr. Fossum practices -- being "in physical control of the vehicle" is enough for a DUI conviction, but in California, the prosecution must prove you actually drove. That means that you caused SOME movement of the vehicle, even it it was only a fraction of an inch.
As Mr. Limberg notes, a good DUI attorney can review all the facts and try to get you the best possible result.
Please understand that this is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like this site, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.
You should contact a defense attorney right away. Since you posted on this site I'm assuming you're not in custody and have an arraignment scheduled in a couple of weeks. There are a number of things a good attorney can do on your behalf now that will pay off in the long run.
First, please understand that the courts and the DMV are separate entities that will act independently of each other. You have ten days from the date of your arrest to request a hearing challenging your suspension. If you have an attorney schedule the hearing then it's likely he will receive a copy of the police report from the DMV well before your arraignment. This will come in handy since he can refer to the report when attempting to persuade the prosecutor, prior to your arraignment, to not charge you with a DUI. He can also challenge a license suspension based on the fact you weren't driving the evening you were arrested. That is also a defense to a DUI charge.
You should not wait to consult a defense attorney regarding what steps can be taken now to ensure you obtain the best possible result.
You need the assistance of a good DUI lawyer. This is too complex a situation for you to be able to handle it by yourself. The problem you face is that by sitting in the driver's seat, you gave the officer reason to believe you were in physical control of the vehicle.
This response is for informational purposes only and is not offered as legal advice.
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