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Attempted Driving Under the Influence

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James W Harwood
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Although rare, charges of Attempted DUI are not unheard of in California. Many people see it as unfair when the prosecution charges a person with a crime when no actual crime was ever committed, and no third party was actually placed in danger. However, it is important for DUI attorneys and citizens to be aware of these potential charges.

Attempted DUI requires the prosecution to prove that you took a direct but ineffective step toward committing a DUI. Of course, the elements of DUI are driving a car, and either being under the influence or having a BAC of .08% or more. Theoretically, a person could be charged with Attempted DUI without driving, being under the influence, or having a BAC of .08% or more. However, these cases always involve an allegation that a person was intoxicated and then tried to drive.

Probably the most common example of Attempted DUI I have seen charged involved variations of the following fact scenario: Driver is three sheets to the wind. He walks out of the bar to his car. He takes his keys out of his pocket, unlocks his door, gets into his car, and starts the engine. Maybe he even puts the ignition in drive with his foot on the brake. He then passes out like rock. A cop then drives by and sees Driver slumped over the steering wheel with the engine running. Driver is then arrested for Attempted DUI. The prosecution will argue that each act he took towards completing the DUI, from walking out to his car to putting the car in drive, were direct but ineffective steps to committing DUI. The degree of Driver's intoxication actually serves to help the defense, because it negates the second element of attempt that Driver actually formed the mental intent to drive. The drunker he can be shown to be the less likely he could have formed the necessary specific intent to drive.

Punishments for Attempted DUI are substantially less than for completed Driving Under the Influence. Most importantly, there is no requirement that the Court report the Attempted DUI conviction to the DMV. Therefore, there should be no license suspension. There is no requirement that you complete any DUI education program. Also, Attempted DUI will not be considered a prior DUI conviction if you are convicted of DUI in the future. Finally, maximum jail sentences are cut in half for Attempted DUI. A standard first offense DUI has a maximum jail time of six months, whereas Attempted DUI is three months. Maximum confinement for a second or third offense DUI is one year. Attempted DUI for a second or a third is six months. If a fourth offense DUI is charged as a felony, the maximum punishment is three years in state prison, but one year and six months for Attempted DUI with three priors.

It is very unusual to see a prosecutor filing charges of Attempted DUI. They are usually very hard for the DA to prove, and often just considered not worth the effort. However, attempted DUI can be a beneficial option to plead a DUI down because of the substantially reduced penalties and consequences. Whether such a settlement can be reached between your attorney and the prosecutor will entirely depend upon the particular facts of your case.

Category: DUI and DWI Laws For California

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