I defend a lot of people from driving on suspended license charges. A surprisingly common thing folks tell me on the is: “but I wasn’t driving!”

When I hear that, my ears perk up. I’m excited that we might have a solid defense to the case. After all, the Commonwealth has to prove that you were driving a vehicle. That’s a critical element of the offense.

Unfortunately, what I usually hear next isn’t helpful to the case. It typically turns out that the defendant WAS driving at some point, just not at the precise moment when the officer came up to them.

That doesn’t matter.

The Commonwealth absolutely has to establish that you were driving. But the officer could have observed you driving at some point earlier in the day or right before he approached you. The officer doesn’t have to pull you over while you’re driving.

It’s a subtle difference, but one that matters a lot. If you didn’t actually drive a vehicle, we have a strong defense. But if you did drive, it’s simply up to the Commonwealth to prove that.

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