Skip to Content

Orange County DUI - I was not Driving


Can the government prove that you were actually driving and that you were tested within three hours of driving?

In a DUI case, the Orange County Prosecutors must prove that you had 0.08% or more alcohol content in your breath or in your blood at the time of driving and that you had 0.08% or more alcohol content in your breath or blood at the time of the performance of a chemical test and that that test was administered within three hours after driving.

However, the three–hour time frame means nothing and does not apply if there is no evidence indicating the time you drove your vehicle. If the Orange County Proescutor cannot prove the time of driving, this three-hour presumption no longer applies and is rebutted. In addition, for the three–hour presumption to apply, the time of driving must be established by competent evidence, which is information that clearly proves a point and is then admissible evidence. But without this evidence, there is no start time from which to calculate three hours.

The time that you were driving can typically be proven by dispatch logs. When an officer makes a traffic stop, they transmit the information to dispatch, which then logs in that the officer has pulled you over, noting the start time. Most often, though, the police do not observe you actually driving your vehicle. In these situations, the government attempts to prove the time of driving from circumstantial evidence as opposed to direct evidence, which is more reliable. Therefore, circumstantial evidence may not be competent evidence to prove that you had been driving or the exact time you had been driving.

In order to prove that you had been driving, the police must eliminate every other possible driver. Once other possible drivers have been eliminated from consideration, your proximity to the vehicle is evidence from which a reasonable conclusion can be drawn that you were the driver. For example, if there is no evidence that you were the driver and there were other people at the scene who may have been driving, the government cannot prove that you had been driving nor can they prove the time that you had been driving.

If you have been arrested for DUI in Orange County but you were not driving at the time of arrest, you may have a defense. You should contact Orange County DUI attorney to discuss your case anytime 24/7!

Share To: