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Charged with a second DUI if you're a passenger?

Garden Grove, CA |

I was recently informed that if one were to have a first time DUI, they can be charged with a second DUI if they were there passenger in a vehicle while intoxicated with another driver who is pulled over for the suspicion of DUI. Is this true?

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Attorney answers 3


You cannot be charged with DRIVING under the influence unless you are accused of DRIVING. A passenger cannot be charged with DRIVING under the influence. Maybe the police believed you were driving.



what i hed heard was its up to the officers opinion if you had the intent to drive , like if you had your car keys on you or if the drivers keys were in arms length , then you could be charged


Absolutely NOT true. A basic element of DUI is Driving. If there was no proof you were driving (keep in mind that "driving" is having control of the car and could include reaching over from the passenger seat and steering), then you cannot be DUI.

The issue may be that your probation could include a term of "consume no alcohol." If that's the case, then yes, you could be in trouble for violating your probation by being intoxicated, but that's separate from a new, second DUI charge.


I practice in Maine, not California, Maine has a case that says you can be charged with DUI as a passenger. In the Maine case the a car owner and his friend were drinking together at a bar. When they left the car owner said to his friend, "I'm drunker than you are, you drive" and gave the friend the keys. The owner was the passenger and the friend was the driver when the police stopped them. Both were drunk and the driver tested well over the limit. The passenger was convicted of DUI on the theory of accomplice liability. This means that he was an accomplice to the drunk friend driving the car - the passenger was the car owner, knew his friend was drunk, he gave the keys to a drunk and told him to drive. The Maine Supreme Court upheld the conviction. Whether this would apply in California is a matter of California law.

The Maine case is State v. Stratton, 591 A.2d 246 (Me. 1991).

Wayne R. Foote, Esq.
Board Certified OUI Defense Law Specialist
Law Offices of Wayne R. Foote, PA
344 Mt. Hope Ave
Bangor, ME 04401
(207) 990-5855
(207) 990-5858 (fax)
"Injustice anywhere is a threat to justice everywhere." M. L. King, Jr.

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