You are not guilty of a driving under the influence (DUI) charge unless you were driving a motor vehicle. In court or during a DUI jury trial, a prosecutor has to prove beyond all reasonable doubt that you were driving while under the influence of alcohol or drugs.
The “no driving defense” is a common way that you can challenge a drunk driving charge. It basically asserts that you are not guilty of DUI because you were not driving a vehicle.
The DUI defense can be effective, for example, when:
- law enforcement find you sitting in your car intoxicated but the car is in park, and/or
- a police officer responds to a drunk driving accident and you are not behind the wheel.
Please note that it is critical to raise a legal defense if facing a DUI charge because a conviction can result in serious penalties. A misdemeanor first-time DUI conviction in the State of Nevada can result in:
- 2 days to 6 months in jail time or 24 hours to 96 hours of community service,
- completion of DUI School,
- attending a victim impact panel,
- a driver’s license suspension or license revocation, and
- installation of an ignition interlock device.1
Our Las Vegas, NV criminal defense attorneys will discuss the following in this article:
- 1. What is Nevada’s DUI law under NRS 484C.110?
- 2. What is the no driving defense?
- 3. How does a DUI defense attorney prove the defense?
- 4. How might a prosecutor prove that you were driving when unseen by the police?
1. What is Nevada’s DUI law under NRS 484C.110?
Under Nevada DUI law, a prosecutor must prove the following to successfully convict you of a DUI offense:
- you were under the influence of alcohol and/or drugs, and
- you drove a vehicle or were in actual physical control of one.2
The term “driving” means to urge and guide a vehicle forward.3
If the facts suggest that you were not driving, then:
- a prosecutor or district attorney cannot prove his/her DUI case, and
- your case should be dropped, or you should be acquitted.
2. What is the no driving defense?
The no driving defense asserts that you are not guilty of a DUI because you were not driving a vehicle.
If true, a prosecutor cannot prove the second element (listed above) of a Nevada DUI charge.
In raising the defense, you often try and show that someone else was driving the vehicle or you entered your car not to drive but to:
- warm up,
- take a nap,
- sober up, or
- make a phone call.
3. How does a DUI defense attorney prove the defense?
The no driving defense helps cast reasonable doubt on a prosecutor’s DUI/DWI case.
Once your DUI lawyer raises the defense, your defense attorney can try and prove it by:
- showing how traffic camera photos or video makes it doubtful that you were behind the wheel,
- presenting witnesses who give inconsistent descriptions or testimony about the driver, or
- finding witnesses who support your version of events (for instance, by testifying that before you were arrested, you said you were going out to your car to lie down).
If you have questions on how a defense lawyer may raise the no driving defense, you should consult with an attorney or law firm for legal advice. Most criminal lawyers provide free consultations to all their potential clients.
4. How might a prosecutor prove that you were driving when unseen by the police?
Prosecutors have various ways of trying to get around the fact that the police did not actually see you drive. Such evidence can include one or more of the following:
- your admission that you were driving,
- the testimony of passengers or other eyewitnesses that saw you driving, or
- traffic video or photographs that show you were driving.
Prosecutors can also try and highlight facts in your case that suggest you were driving. Some of these facts include:
- you were trying to put your keys into the ignition,
- your car was in an odd location (such as partway onto a highway median) and you were sitting in the driver’s seat, or
- you were the only person at the scene of an accident other than pedestrians or the occupants of one or more other cars.
For additional help…
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Las Vegas Defense Group. Our attorneys provide both free consultations and legal advice you can trust.
- For general DUI penalties, see Nevada Revised Statutes 484C.400.
- NRS 484C.110. Note that you are not in actual physical control of a vehicle if, for example, you are asleep in a vehicle, you are not in the driver’s seat of a vehicle, or the vehicle is parked. See NRS 484C.109. See also Rogers v. State (1989) 773 P.2d 1226.
- Black’s Law Dictionary, Sixth Edition – “Driving.”