In California, you can be convicted of aiding and abetting anytime you encourage, facilitate or aid another person in the commission of a crime regardless of how insignificant your role. But aiding and abetting is not a crime unto itself. When the prosecutor believes that you are guilty of aiding and abetting a crime, he/she charges you with the underlying crime and proceeds on the theory that you aided and abetted the perpetrator. If you are convicted, you face the same penalties for the underlying offense as the primary perpetrator…it's as if you had committed the crime yourself.
So how do these laws apply to the California crime of DUI?
Couldn't it be said that a bartender who pours and serves the drinks is facilitating the crime if he/she knows that the patron will be driving? What if you are too impaired to drive so you give the keys to someone else who you know has been drinking…does this encourage the crime? It certainly aids in its commission…
There are several states that have held that you can be convicted of aiding and abetting a DUI but as of now, California does not appear to be one of them.
It would probably be a fairly difficult case for the prosecution to prove. Bartenders or other servers would have to know that the patron planned on driving. You would have to know that the driver of your car is over the legal limit (which would likely be difficult if you, yourself, were too impaired to drive).
And then there's the issue of duty. Mere presence at the scene or knowledge that the crime is being committed isn't enough to sustain an aiding and abetting charge. To violate the law, you would have to have a legal duty to prevent the crime. To date, this legal duty doesn't exist in California. (Read our article, Can a California DUI conviction be removed from my record?)