Attempted DUI


It is possible to be charged with attempted DUI if you unsuccessfully attempt to drive a vehicle while intoxicated.

Let’s say that after a night of drinking at the bar, you get into your car to drive home but are so drunk that you’re you can’t fit the key into the ignition. If an officer observes this, you may be charged with attempted DUI.

Does such an offense even exist? The issue was brought before the California Appellate Court in the case of People v. Garcia. In that case, the defendant was found in the driver’s seat of her vehicle which was in the fast lane with her hazard lights on.  The vehicle began to roll backward and officers observed the defendant attempt to start the car. The car would not start, but the defendant was able to stop the car by putting it in “park.” The court held that the California Penal Code sections dealing with “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 towards its commission.”

Specific intent crimes require the intent to commit the actual crime. For example, the crime of burglary requires that the defendant intend to commit a felony, usually theft, once they have entered into the dwelling place of another. Without the intent to commit a felony, the crime becomes trespass. Driving under the influence, on the other hand, is a general intent crime because it only requires that the person intend to commit the act of driving. Attempt is a specific intent crime because it requires the defendant to specifically intend to commit the crime.

The fact that California Penal Code section 21(a) applies to a general intent crime when it requires specific intent is counterintuitive. Maybe this is what the Garcia court was addressing when it stated that it was “not unmindful that there might be some troublesome questions which will have to be resolved in later cases.”

If attempted DUI requires the defendant to specifically intend to commit the crime of drunk driving, the mere fact that they were drunk may serve to negate the possibility that they could, in fact, specifically intend to drive drunk.

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