Los Angeles Attempted DUI Attorney

Attempted DUI charges in Los Angeles can be unexpected, particularly for those who believe an arrest for driving under the influence requires actual operation of a vehicle on a public road. However, California law allows prosecutors to file charges based on an alleged attempt, even without proof of completed driving.

Understanding the legal principles behind attempted DUI in California, including the relevant statutes, jury instructions, and potential sentences, is crucial for anyone facing such accusations to make informed decisions about their defense. If you have been accused of attempted DUI, you need an expert DUI defense attorney who will guide you through the process and protect your future.

California law defines the crime of attempt in Penal Code Section 663. This section states that an attempt to commit a crime consists of two key elements: a specific intent to commit the underlying crime and a direct but ineffectual act done toward its commission. Additionally, Penal Code Section 664 outlines the penalties for attempted crimes. While many crimes in California require proof of specific intent, driving under the influence is generally classified as a general intent offense. This distinction can create confusion when dealing with Attempted DUI charges, as the law of attempt necessitates proving specific intent. Nevertheless, California courts have consistently held that Attempted DUI is a prosecutable offense when the evidence supports the elements of attempt.

The California Court of Appeals case of People v. Garcia provides a significant precedent for the prosecution of Attempted DUI. In this case, an officer observed a driver with her vehicle's hazard lights on, rolling backward in the fast lane. The driver did not respond when asked to apply the brakes and subsequently attempted to start the car, which was in neutral. A blood alcohol test later revealed a BAC of 0.13 percent. The defendant also admitted that she intended to drive home had she successfully started the vehicle. While the appellate court in Garcia ultimately found sufficient circumstantial evidence to convict the defendant of completed DUI, it explicitly stated that Attempted DUI could be prosecuted in California if the evidence establishes the required elements of an attempt.

Driving under the influence, as defined under Vehicle Code Section 23152, is typically considered a general intent crime. To secure a conviction for DUI, the prosecution must demonstrate that the defendant intended to drive and did so while under the influence of alcohol or drugs or with a BAC of 0.08 percent or higher. The prosecution does not need to prove that the defendant specifically intended to violate the law by driving while impaired; it is sufficient to show that the person chose to drive while under the influence.

However, the law of attempt, as outlined in Penal Code Section 21A, requires a higher level of culpability. It necessitates proving that the defendant had the specific intent to commit the underlying crime. In the context of Attempted DUI, this means the prosecution must prove that the defendant had the specific intent to drive a vehicle while impaired. Courts have clarified that even though DUI itself is a general intent offense, a person can still form the specific intent to drive a vehicle while intoxicated. This involves having the conscious objective to get behind the wheel and operate the vehicle while knowing they have consumed alcohol or drugs. This interpretation allows for Attempted DUI charges in situations where the defendant did not manage to move the car noticeably but took concrete steps to do so.

A significant hurdle in prosecuting attempted DUI cases is establishing the defendant's specific intent to drive while intoxicated, as required by the attempt statutes. The appellate court in Garcia recognized the complexities of this issue, noting that a person with a mild level of intoxication might be capable of forming the necessary specific intent, whereas someone severely intoxicated might lack the capacity to do so. This presents a potential paradox where extreme intoxication could serve as a defense to an Attempted DUI charge by negating the element of specific intent, even though it would not necessarily be a defense to a completed DUI.

In practice, prosecutors often pursue Attempted DUI charges when the evidence suggests the defendant was on the verge of driving or took a direct, albeit unsuccessful, step toward driving. For example, finding a defendant in the driver's seat with the keys in the ignition and evidence of impairment can lead to an Attempted DUI charge. The prosecution would argue that these facts demonstrate both the intent and the direct act required for the charge. However, the defense may counter by arguing that the defendant did not actually intend to drive, perhaps waiting for someone, sleeping in the car, or being too intoxicated to form the requisite specific intent.

California's model jury instructions for attempt crimes are generally found in CALCRIM 460 (Attempt Other Than Preparatory Acts). These instructions specify that to prove an attempted offense, the prosecution must demonstrate two elements: first, that the defendant took a direct but ineffective step toward committing the crime, and second, that the defendant intended to commit the crime. When the underlying offense is DUI, the prosecutor may also refer to instructions derived from CALCRIM 2110 (Driving Under the Influence) or CALCRIM 2100 (Driving Under the Influence Causing Injury, which address the elements of driving under the influence of alcohol or with a BAC of 0.08 percent or higher.

For an Attempted DUI charge, the jury would be specifically instructed that the defendant must have had the specific intent to drive under the influence. Furthermore, the prosecution must prove that the defendant's actions went beyond mere preparation and constituted a direct step toward driving. Examples of a direct step could include turning on the ignition, attempting to start the car, or maneuvering the vehicle in some way, even if the vehicle did not ultimately move into traffic.

California Vehicle Code Section 23152, proof that a person was "driving" under the influence, which generally necessitates evidence that the defendant's vehicle moved in some capacity. The California Supreme Court and various appellate courts have emphasized that "volitional movement" of the vehicle is a necessary element for a completed DUI conviction. This is a stricter standard compared to many other states where simply being in control of the vehicle while intoxicated can be sufficient for a DUI conviction.

In contrast to some states where having the keys in the ignition or being in "actual physical control" of the vehicle might suffice for a DUI conviction, California law demands more concrete evidence that the suspect caused the vehicle to move. This requirement means that DUI charges often depend on whether an officer or witness observed the vehicle moving or if there is compelling circumstantial evidence—such as a warm engine, the vehicle's position on the road, tire marks, or admissions from the defendant—indicating recent operation.

Attempted DUI prosecutions often arise when the prosecution lacks conclusive proof of actual movement but can demonstrate that the defendant took significant steps toward driving while intoxicated. For instance, if a person is found asleep in the driver's seat with the keys in the ignition and admits to an officer the intention to drive home, an Attempted DUI charge might be filed if there is insufficient evidence of actual vehicle movement.

In California, the penalties for attempt crimes are typically one-half of the sentence for the completed offense if the completed offense is a felony. However, most DUI offenses under Vehicle Code 23152 are misdemeanors unless aggravating factors are present, such as multiple prior DUI convictions, injuries to another person, or extremely high BAC levels. When the attempted crime is a misdemeanor, the punishment often closely mirrors what a defendant would face for a completed misdemeanor DUI, although it can sometimes be reduced depending on the specific circumstances.

A first-time DUI offense in California generally carries a potential sentence of up to six months in county jail, fines ranging from $390 to $1,000 (plus significant penalty assessments), mandatory DUI education programs, and possible driver's license suspensions. attemptedpted DUI charge for a first-time offender might result in similar penalties, but a skilled defense attorney can argue for a lesser punishment, emphasizing that the offense was not completed and the defendant did not pose the same level of risk as someone lly drove on a public road. Notably, a conviction for Attempted DUI does not automatically trigger a driver's license suspension or mandatory DUI school in the same way a completed DUI conviction does, which can be a significant difference. Furthermore, an Attempted DUI conviction will not count as a prior DUI offense in the event of a future DUI arrest.

If a defendant has prior DUI convictions within 10 years, the severity of the charge can increase. Multiple prior offenses or a DUI causing injury can elevate the offense to a felony, potentially leading to state prison time. In such cases, an Attempted DUI conviction could still result in significant penalties, although generally less severe than a completed felony DUI, depending on the specifics of the charge and the relevant provisions in the Vehicle Code or Penal Code enhancements. According to Penal Code Section 664, the penalties for an attempted crime are typically one-half of the potential fine and one-half of the potential jail sentence for the actual crime. Therefore, a conviction for Attempted DUI would likely result in half the fine and half the potential jail time associated with a completed DUI.

When determining sentences for Attempted DUI, courts consider various factors. These include the defendant's criminal history, any prior DUI convictions, the level of intoxication at the time of the incident, and the specific circumstances surrounding the attempted crime. For example, a person with no prior record, a relatively low BAC, and full cooperation with law enforcement might receive a more lenient sentence. Conversely, an individual with multiple prior DUIs who intended to drive on a busy freeway could face harsher penalties.

Probation is also a common outcome in misdemeanor attempted DUI cases. Under California law, a court may grant probation with conditions such as completing a DUI education program, installing an ignition interlock device (IID), or performing community service. The terms of probation can be strict, and any violation can lead to jail time.

Defending against an Attempted DUI charge often involves challenging the prosecution's evidence regarding the defendant's specific intent to drive and whether their actions constituted a direct step toward driving rather than mere preparation. If there is no evidence that the defendant tried to start the car or move it, the defense can argue that the actions were only preparatory or that the defendant never actually intended to drive. It may also be argued that the defendant was too intoxicated to form the specific intent required by the attempt statute.

Another potential defense is the lack of evidence of volitional movement, which is crucial for a completed DUI. If the prosecution initially sought a full DUI conviction but reduced the charge to Attempted DUI due to insufficient evidence of actual driving, the defense might argue that there was also insufficient evidence of a direct step toward driving. Raising reasonable doubt about the defendant's actual intent is often a key strategy in securing a reduced charge or a dismissal.

Facing attempted DUI charges in Los Angeles can be a complex and stressful experience. The intricacies of the law, particularly the distinction between the general intent of DUI and the specific intent required for an attempt charge, make these cases uniquely challenging. Prosecutors will likely use various forms of evidence, such as statements made to officers, BAC results, dashcam footage, and eyewitness testimonies, to build their case. At Kraut Law Group Crimla & DUI Lawyers Inc., our attorneys can thoroughly examine every aspect of the arrest and the available evidence to develop a robust defense strategy tailored to the specific circumstances of the case.

For more information about Los Angeles attempted DUI, and to schedule your free consultation, contact Los Angeles DUI Lawyer Michael Kraut at the Kraut Law Group Criminal & DUI Lawyers, Inc. located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.