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Is Not Having Keys In the Ignition Enough To Avoid A DUI Arrest?


Not having keys in the ignition helps but unfortunately is not enough. Keys can be anywhere. If they’re in the ignition and you’re in the driver’s seat and the car is on, that’s probably the worst case scenario other than the officer seeing you driving or observing what’s called volitional movement. Volitional movement is derived from the Mercer case that requires that the vehicle is moving at some point, whether you admitted the fact or they can determine that it was moving at some point.

The keys should be, if you’re sleeping in the car, nowhere to be found. You shouldn’t be saying anything to an officer about whether you were driving or not, and you can completely decline to answer any questions except for identifying information; that’s what should be done if you sleep in your car and you’re the one who drove there. If you want to stay out of trouble, the more you say the more trouble you’re going to cause for yourself, so you must be careful about what you say and obviously who you say it too.

With regard to the keys, the best thing you can do is if it’s cold and you’re sleeping it off in your car, do so in the backseat with the keys nowhere to be found and do not let them know that you were the driver by not answering that question. If you do, tell them someone else was the driver. You can do that, but you always run the risk of a charge of lying to an officer or giving false information to an officer, which is a Vehicle Code Section 31.

Even better than sleeping it off in your car would involve being nowhere near your car, nowhere to be found. Obviously, the person wondering about this and reading this information right now is probably facing a charge where they were sleeping it off in their car or sitting in their car and not driving, and the damage has already been done but what’s important to know is that the cops or the DA’s office has to be able to prove beyond a reasonable doubt that you were the driver. And they can use a lot of different ways to prove that. The less you do to help them the better off you are.

How Does The DMV Factor In A DUI Case Where The Vehicle Was Stationary?

The DMV is always going to get involved when the Police Department sends them the suspension letter that the officers give you: you get a pink copy, and they send a white copy. This is the admin per se suspension order. The DMV will get that, and you’ve got 10 days to request a DMV hearing. The elements of that hearing are that they have sufficient cause to pull you over or initiate a DUI investigation to determine a lawful arrest and were you at or over a 0.08 at the time of driving.

So even though they might not have proof of driving, you’re still going to have to request that hearing; the DMV is not going to look at the report on their own and go, “Hmm, it doesn’t look like he was driving here. We’re not going to go after him.” But if they don’t have proof of driving, then a good DUI lawyer in the San Francisco Bay Area can have a much better chance of getting that suspension set aside and helping you keep your license.

How Important Is The Temporary License Or Pink Piece Of Paper Issued By The Officer?

That is your temporary license. It is good for 30 days from the date of your arrest. You have 10 days from the date of your arrest to request an administrative hearing, and weekends count so you want to try and get the request on Friday before so they don’t hassle you out of the 10 day issue. A request for an administrative hearing within 10 days will prolong your temporary license beyond the 30 days, assuming your hearing is set beyond the 30 days, which is almost always the case because the DMV is very backed up.

You should have a lawyer, who knows what they are doing, to request this hearing, and this is important for a number of reasons. You are welcome to request that hearing yourself, but it may be harder than for that lawyer to choose the hearing officer as they’re trying to get one that’s going to give you the best chance to win your hearing and continue the case, as long as it needs to be continued, while the court criminal case is going on. Also you may be able to go to the DMV, depending on which area you’re in, to get a new hard copy license.

Certainly, when you get a white piece of paper, which is a new temporary license that should be sent to you from the DMV after your hearing has been set, it will say on the bottom that that you can go get a hard copy license, which you should be able to do in San Francisco and a few other jurisdictions. The new hard copy license will arrive within a week or two, usually after you go to the DMV to request it.

The DMV is supposed to give you a new license while this is all going on, if you’ve requested a hearing, because you need identification; and if you lose your hearing, you’ll have to turn it back in, but you are entitled to one under the law, and according to the paper that they send you, what it says on the white temporary license goes beyond the 30-day pink sheet. The instructions for the DMV hearing are on the back of that pink sheet and will list a number of things. It will show what the issues are for the hearing, depending on the type of hearing, and on the front, there’s usually a box checked that shows why the officer arrested you, whether it was for a 0.08 or over or a refusal to do a test or a forced blood draw, and it also mentions on the front of the page the ability to get a hearing within 10 days. There’s a lot of information on there.

Most people don’t read that information, and hopefully they get to their DUI lawyer within those 10 days. However, it can happen that a client may go beyond the limit of 10 days and finally goes to an attorney after 5 p.m. and gets lucky enough to have the attorney fax over the DMV letter at the last hour, literally, to get a hearing. But it’s important that anybody who gets a DUI in California read that pink sheet. Sometimes, people are not given the pink temporary license, and that obviously creates a problem.

For more information on Not Having Keys In The Ignition, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

Aaron Bortel

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