California courts have upheld the existence of the offense of attempted drunk driving. Attempted drunk driving is relevant in circumstances where the defendant is observed behind the wheel of a vehicle, but no actual movement of the vehicle is witnessed. In these circumstances, prosecutors regularly file DUI charges in Orange County and Los Angeles, on the assumption that they can prove driving by circumstantial evidence, such as the defendant's vehicle registration, keys in possession, absence of any passengers who may have driven, engine running etc. After all, the vehicle got to the location somehow.

It should be noted that if the defendant claims that no actual driving occured or the consumption of alcohol was in the vehicle after arrival at the location of the parked vehicle, this is a defense to DUI and the case should be tried before a jury if the prosecutor is unwilling to dismiss the case. However, in circumstances where the defendant drove to the location after consuming alcohol and was seen by the police or a witness stationary in his vehicle, a plea to attempted drunk driving may be considered in order to avoid the mandatory penalties associated with DUI including jail time, license suspensions and alcohol programs. In addition, a conviction would not be a prior DUI in the event of any future prosecutions.