Yes, Virginia, there is such a crime.

After leaving a bar, Mitch found his car had a flat tire. Although he was somewhat inebriated after drinking three beers, he was able to jack up his car, remove the lug nuts and replace the flat tire with his spare. As he was putting the flat tire in his trunk, car keys in hand, a police officer pulled up. Mitch wasn’t even inside his car, but the officer, having a reasonable suspicion that Mitch is under the influence and intends to drive his car, engaged Mitch in conversation. Before he knows it, Mitch is under arrest for attempted DUI.

Under California law, an attempt to commit any crime, even if that attempt fails, is prevented, or intercepted before it is committed is unlawful under Penal Code section 664. To prove that an individual  attempted a crime, there must be evidence that the individual had the intent to commit the crime and took a direct step towards committing the crime. In Mitch’s case, the prosecution may allege that the fact that he fixed the flat tire and had his car keys in hand showed he intended to drive his car and, had he not been interrupted by the officer, would have done so.

Although there is no specific California statute making attempted driving under the influence a crime, the, the California Court of Appeals established that attempted DUI is a crime in the state. ( People v. Garcia (1989) 214 Cal.App.3d Supp. 1, 262.) In that case, the driver was in the driver’s seat of her stopped car in the fast lane with her flashers on. The car was in neutral and the driver was trying to start her car. As the car started to roll backwards, the driver put the gear shift in the park position. Furthermore the driver told the officers that if she had started the car, she would have driven it. The court noted that the requisite element of driving (a slight movement of the vehicle) was direct evidence of driving. The driver challenged her attempted DUI conviction on appeal. The court held that attempted DUI is a specific intent crime, that is, a mental state of intent to commit the crime.

You might see an immediate defense here. How can an intoxicated person form the requisite specific intent? Even though you chose to consume the alcohol, you still may be able to defend this crime because in your inebriated state, you could not have formed the mental state of intent. This defense is viable for those defendants who are so intoxicated that they “weren’t thinking right.” This is a question of fact. The Garcia court recognized that this may be a troublesome issue in the prosecution of an attempted DUI. (It is important to note that attempted crimes are always specific intent crimes, while many actual crimes, including driving under the influence, are general intent crimes, which don’t require the same mental state and accordingly, intoxication is not available as a defense.)

Even if you are only mildly intoxicated and able to form the intent, the prosecution must prove that you did indeed have the intent to drive and took a direct step toward committing the DUI. The facts must be unambiguous as to those required elements of an attempted crime. In Mitch’s case, for example, a skilled DUI defense attorney could offer a compelling defense that the facts did not unambiguously demonstrate that Mitch intended to drive his car or that by simply fixing the flat and having his keys in his hand, did he take a direct step in doing so.

In some cases, an attempted DUI conviction is preferred. Attempted crimes are punished by one-half the sentence provided if the crime was completed. Although it is not that common, drivers charged with a DUI, may obtain a more desirable outcome by negotiating a plea to an attempted DUI rather than the straight DUI.

Orange County DUI defense attorney is available for a complimentary consultation. He will review your case and offer his assessment of your options. You may contact him at his Irvine office at 949-474-8008 or by emailing him at

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