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Hit by another driver, but not arrested for DUI -- will I be charged?

Fresno, CA |

I was convicted of a DUI three years ago in California and recently filed to have my probation terminated early. While visiting family and friends in another part of California this past weekend, I was involved in a car accident. I was hit by another car and when the police arrived they performed a field sobriety and breathalyzer test on me. I was over the legal limit, but I was not arrested. The officers confiscated my license and drove me to my family's house just a few blocks away. I have several questions about all of this.

Will the court that is handling my early probation termination find out about this before my appearance in several weeks?

Will I be charged for a second DUI?

Will I need to come back to the county that the accident took place to handle everything?

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Attorney answers 6


While you we're undoubtedly the victim of a negligent driver in this case, that does not eliminate the possibility hat you could still be charged with driving under nth influence.

The fact that the police released you without a formal arrest is a "good" sign, however, since they took your license, there still remains a possibility that the DA or the police department themselves could file charges against you.

Another positive factor going in your favor is that there was no blood draw, urine test or breath test with which they could present at trial to convict you. If they were desperate to convict you, the police officer himself could testify as to any objective signs of intoxication, as well as use the preliminary alcohol screening results against you, provided that the proper foundation is laid.

As to whether the home county of your previous DUI will file aromatics violation, this seems unlikely. Without an underlying charge in this new matter, the evidence to establish a probation violation is weak at best. While not impossible, I would be very surprised if the DAs office in the original county for your previous conviction would pursue this.

Contact a local Fresno DUI attorney to start preparing for the possibility of being charged. You most likely will not be, but better to be prepared. Good luck.


You violated probation by driving with any measurable alcohol in your system. You need an attorney ASAP ! The DMV also has to be dealt with in a timely manner.

Andrew Roberts

Andrew Roberts (818) 597-0633/ (805) 496-7777


You need to consult with a DUI attorney local to the area where the accident was. You violated your probation by drinking and driving so you also need to be concerned about your first DUI probation. What county was the accident in?

Contributions on in no way create an attorney-client relationship nor are they intended to be relied upon as a course of action without having first consulted directly with an attorney, where the specific facts and circumstances of your case can be fully discussed.


Normally, I try to offer specific suggestions to each questioner, but your situation is complicated. The best advice I can offer is to contact an experienced lawyer and don't post any further information about your case. Your matters need to stay under the radar until your lawyer can sort out your issues and give you proper guidance.

Good Luck

Every case and situation is different and vary greatly depending on specific facts. My posts are not to be considered complete answers to each question. My posts do not constitute an attorney/client relationship. I am only licensed to practice in the State of Florida and in federal courts. Florida Bar #337821, admitted 1982.


Hire an attorney ASAP. Don't talk about this incident to anyone except your attorney. Do not attempt to handle anything with your insurance or other car's insurance without attorney. Not a word to cops, hire an attorney, good luck


The answer to numbers 1 and 2 are "it depends." The easiest to answer is the third question. Yes, if they file, you will be required to go to the county in which the case is filed.
Hopefully, you can get the early termination completed before this case pops up. Generally, the courts have the probation department run a statewide criminal history report for cases where our clients are seeking early termination of probation/expungement pursuant to Penal Code 1203.4, and if you were not arrested, the new case may not show up yet.
In terms of whether you are charged, if you are charged at all, I would anticipate it would be as a second offense. I would need to know what papers you were given by the officer when you said your license was confiscated. It may well have been a notice of temporary driver's license with notice of the procedure for requesting a DMV hearing. You may have also been given a Notice to Appear. Each of those would indicate charges are some point in time. The DA has up to a year to file charges. If you request a DMV hearing within the time limit, you can request a copy of the police report as well. That will give you and your counsel time to review the allegations against you before you need to go to court.

I am a former Deputy District Attorney and former DA Family Support Attorney. This answer is not intended to give specific legal advice or to create an attorney-client relationship. Michael Scheid may be reached at (209)544-5727. For new Criminal Defense clients and Personal Injury clients the initial consultation is free.

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