Is there such a thing as Attempted DUI?

Posted by Jon Ibanez on October 11th, 2016

It’s not a common question, but one that I was asked about during a criminal law class that I teach: Is there such a thing as attempted DUI?

“When might this scenario present itself,” you might ask.

Imagine a scenario when a person is extremely drunk at a bar. After leaving the bar, the person enters their vehicle, but cannot start it because they are drunkenly using the wrong key. Unbeknownst to the person, a police officer was outside of the bar and witnessed the whole thing.

The officer can’t arrest the person for a DUI because in California, the law requires that the person actually drive their vehicle. But can the officer arrest the person for attempting to drive drunk?

In People v. Garcia, law enforcement found the defendant in her vehicle which was in the fast lane of the highway with the hazard lights on. As her vehicle began to roll backwards, the defendant unsuccessfully attempted to start the engine. She was, however, able to put the vehicle in park. Law enforcement observed the entire thing and arrested the defendant.

After the defendant was convicted, the court of appeals determined that the crime of “attempt” can be applied to a California DUI.

According to the California Penal Code, an “[a]ttempt requires a specific intent to commit the crime, and a direct but ineffectual act done towards 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, but not necessarily driving while drunk. A “specific intent” crime, on the other hand, requires that a person intent to commit a crime. Theft, for example, is a specific intent crime because it requires that the person have the specific intent to steal the property of someone else. But very few people intend on driving while drunk. Rather, they intend to drive while they also happen to be drunk. It is subtle, but very important distinction.

The court in Garcia essentially ruled that an attempted California DUI is a specific intent crime. In other words, a person can specifically intend on attempting to commit the crime of driving under the influence, not just the act of driving. This ruling begs the question: If a person can specifically intend to attempt to drive while under the influence, then can the mere fact that they are drunk negate their specific intent to commit a crime?

This may sound a little confusing, so let me put it in other terms. Let’s say a person becomes so drunk that they “black out,” but are still conscious. That person then steals his neighbor’s lawn gnomes because, in his drunken state, he thinks it will be funny. If he is prosecuted for theft, the prosecutor would have to prove that the person had the mental state to specifically commit the crime of theft. This may be difficult for the prosecutor to do if the person was “blacked out” drunk.

So let’s recap. A California DUI is a general intent crime because a person doesn’t intent to drive under the influence. However, when they attempt to drive under the influence, but unsuccessfully do so, it is a specific intent crime where a prosecutor must prove that a person actually intended on committing a crime of attempted DUI. The intoxicating effects of alcohol consumption can serve to negate the specific intent needed to commit the crime of attempted DUI.

So where does that leave us? Unfortunately, I don’t know and I don’t think the court knows either.

The court in Garcia went on to say that it was “not unmindful that there might be some troublesome questions which will have to be resolved in a later case.”