Can you really get a DUI if you were not driving when the officer approached your vehicle?
The short answer is……Yes
The long answer is ……..Under Mercer v. Department of Motor Vehicles, the law demands proof of your volitional movement1 of a car before being convicted of a DUI.
In this article, I will explain what happens if you are in or around a parked car when a police officer suspects you of DUI or sleeping inside one.
- California DUI Laws
- Can You Be Arrested For Attempted DUI?
- Defenses To A Parked Car DUI
- Important DUI Information
California DUI Laws
In California it is unlawful to drive with:
- A blood alcohol concentration of 0.08% or higher pursuant to VC 23152(b) .
- If you are under 18, you may not have a BAC of 0.02%.
- Commercial drivers are prohibited from driving with a BAC of 0.04% under California law2.
But What If You Were In A Parked Car?
In other words, the car was not moving and you were parked on a city street or alongside the roadway when a police officer pulled up and decided to question you.
Being in a parked vehicle may or may not be grounds for law enforcement to investigate you for DUI or any other alleged offense.
As with many stops and detentions by police, it depends on the facts and circumstances of each case.
What Probable Cause Does An Officer Have To Question Someone In Their Car?
First, an officer has to have probable cause to stop or detain a person, which means reasonable suspicion that you had or were about to commit a crime.
- Sleeping in a car, which can prompt an officer to question you.
- If you are pulled over to the road on the shoulder.
- You fell asleep at a stoplight.
An officer certainly will want to see if your car is disabled or if you need assistance.
But In Such A Case, Can You Be Convicted Of A DUI?
Where you are detained in a situation where you were sleeping or had pulled over to the shoulder, an officer can conclude from indirect evidence that you had been driving the vehicle.
How Does The Police Officer Conclude You Drove The Car?
The officer will undoubtedly ask if you had been driving and in some cases, an individual will admit to it.
Additional evidence of movement can include:
- Warm engine
- Warm tires
- Keys in the ignition
- Car in the middle of the roadway
- Vehicle damaged and next to the scene of an accident
- Gear is in drive
- Your failure to explain the absence of an alternate driverif you deny being the driver or to give a credible explanation of where the driver is or the driver’s identity
If you display the effects of impairment or intoxication, you can be arrested for DUI3.
What Are The Indications of Intoxication?
Police officers are trained to note signs of impairment or intoxication.
- Slurred speech,
- Watery eyes,
- Confusion over questions,
- Having an odor of alcohol or even admitting to drinking.
Under these circumstances, the officer can ask that you perform certain field sobriety tests (FST) that give an indication of your coordination and ability to follow directions and to blow into a PAS or preliminary alcohol screening test.
If the test indicates your BAC is at least 0.08%, you will be arrested.Attorney Diana Aizman
Often a police officer will arrest you if you blow as low as .06%.
Can You Refuse These Tests?
Unless you are a minor or commercial driver or under probation, you have a right to refuse to perform any field sobriety test or refuse to take a pre arrest breath test.
You do not have a right to refuse to take a breath or blood test of your BAC after arrest under the implied consent law4 where every driver must agree to a test of their blood alcohol level unless the officer had no probable cause to detain or arrest you for DUI or your refusal was reasonable.
Can You Be Arrested For Attempted DUI?
Another scenario is where you enter or are in your car but have not driven.
In California, you can be convicted of attempted DUI for trying to or exhibiting the specific intent to drive even if your car is still parked5.
There is the crime of attempt, which is dealt with under Penal Code Section 21(a).
What is Considered An Attempt?
An attempt6 is a specific intent to commit a crime with a direct but ineffectual act towards committing it.
Though Rare, You Can Be Charged With Attempted DUI.
If the officer arrives and you are sitting in the front seat, keys in the ignition or the engine on, then you can be presumed to have intended to drive.
Other evidence might be belongings or luggage or groceries in the back seat together with no evidence of someone else as passenger or driver.
Do You Lose Your License For Attempted DUI?
There is no requirement, however, that the court notify the DMV so your license will not be suspended.
Since attempt crimes usually have half the penalties or sentence of the principal or completed crime, you face perhaps a maximum of 3 months in jail but no mandatory participation in a DUI class and it is not considered a prior drunk driving offense should you be convicted of a DUI in the future.
Defenses To A Parked Car DUI
As indicated herein, the main defense to a DUI if you were arrested while in a parked vehicle is lack of proof that you were driving.
- Admitted to driving or,
- Had keys in the ignition,
- A warm engine or tires,
- Car parked on the shoulder or in a remote area and
- No indication that someone else was driving,
The prosecutor may not be able to prove you were the driver. Lack of probable cause to detain and question you is a defense.
Merely sitting in your car without more is not probable cause to believe you had committed or were about to commit a crime7.
You Were Not Under The Influence When The Car Was Moved?
Another defense is that you were not intoxicated at the time you were allegedly driving.
For instance, you could have informed the officer that you had only been drinking after you were driving.
If you are seen drinking in a parked car when the officer first observes you, then the DA may not be able to prove that your BAC was at 0.08% or higher or that you were impaired at all at the time you were allegedly driving regardless of your test results or overall demeanor.
Important DUI Information
- The 3 Stages Of The Misdemeanor DUI Court Process
- The “No Driving” DUI Defense
- How To Expunge A DUI
- 23 Things You Must Know About A First Time DUI
Next Steps If You Need Help
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
Request A Free Consultation
- Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d. 753 [↩]
- People v. Milham (1984) 159 Cal.App.3d. 487,503-505 [↩]
- Zamucen v. Crocker (1957) 149 Cal.App.2d 312, 316 [↩]
- Vehicle Code 23162(a)(1)(A) – A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies. [↩]
- People v. Garcia (1989) 214 Cal.App.3d Supp. 1; People v. Lively (1992) 10 Cal.App.4th 1364 [↩]
- “Attempt” is taking a direct but ineffective step toward committing an offense and the defendant intended to commit the crime. People v. Toledo (2001) 26 Cal.4th 221, 229-230 [↩]
- People v. Hernandez (1990) 219 Cal.App.3d 1177, 1184 [↩]