Can a Person Be Charged and Convicted of Attempted DUI?

Posted by Jon Ibanez on August 11th, 2014

Let’s envision a scenario: a man is drinking rather heavily at a bar. Barely able to stand, the man closes out his tab and stumbles to his car intending to drive home. However, after getting into his car, the man unsuccessfully attempts to fit the key into the ignition because he’s just that drunk. The man then passes out before he is able to start his vehicle. Unbeknownst to the man, an officer has witnessed the man’s unsuccessful attempts at driving home.

Since California DUI law requires that a person actually drive a vehicle, the question becomes, “can a person be arrested for attempted DUI?” Does such an offense even exist?

States are divided as to the answer. However the issue in California was addressed by the California Appellate Court in the 1989 case of People v. Garcia, 262 Cal. Rptr. 915.

In People v. Garcia, the defendant was found in the driver’s seat of her vehicle. Her vehicle, at the time, was in the fast lane of the highway with the hazard lights on. Her vehicle began to roll backward and the defendant unsuccessfully attempted to start the car. She was, however, able to stop the vehicle from rolling backward by putting it in park. Unfortunately, for the defendant, officers were observing and arrested her.

The court held that the California Penal Code sections dealing with the crime of “attempt” are applicable to DUI cases.

California Penal Code section 21(a) states that an “[a]ttempt requires a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.”

Driving under the influence is, what is called, a “general intent” crime because it only requires that a person intend to commit the act of driving. A “specific intent” crime, on the other hand, requires that a person intent to commit a crime. Murder, for example, is a specific intent crime because it requires that the person have the specific intent to kill someone. If someone is killed unintentionally, say during a traffic collision, the crime becomes involuntary manslaughter which is a general intent crime.

In applying California’s attempt laws to DUI, the court in Garcia essentially made attempted DUI a specific intent crime. In doing so, the court created an interesting paradox.

If attempted DUI requires the specific intent to commit the crime of driving drunk, the mere fact that a defendant was drunk may serve to negate the possibility that they specifically intended to commit the crime of DUI.

Perhaps this paradox is exactly what the Garcia court was referring to when it said that it was “not unmindful that there might be some troublesome questions which will have to be resolved in later case.”

Troublesome questions indeed…

 

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