Most DUI arrests happen after you are pulled over while driving, or after there’s been an accident. In some cases, however, officers find you in a car that is parked and suspect you of DUI. How police will proceed in these situations, and whether you can be convicted of DUI, depends largely on the circumstances.
Can you get a DUI in a parked car?
Yes—but only if there’s reason to believe that you were driving.
This was established by an important California court case, Mercer v. Department of Motor Vehicles, which established two important rules:
- You can only be convicted of DUI if you voluntarily caused a car to move prior to your arrest, and
- Circumstantial evidence is enough to determine this.
Each of these rules matters in your parked car DUI case.
Voluntarily moving a car means anything from driving it down the road to simply moving it down the driveway. It can even include releasing the parking break and allowing the car to roll. If you did anything intentional that moved the car, you were “driving.”
Circumstantial evidence means that police don’t need hard proof that you were driving. If the engine is still warm, for example, that suggests you were driving the car shortly before police found you. That would be enough to arrest you for DUI and potentially to convict you—although a conviction is not certain without stronger evidence.
What counts as evidence that I was driving?
Any of the following may be used to justify the presumption that you drove the vehicle:
- Engine still warm
- Tires still warm
- Car is in the middle of the road or somewhere it could only have gotten by driving
- You are at the scene of an accident
- The keys are in the ignition
- The car is currently in “drive” (even if stopped)
- There is no one else around who could have driven the vehicle to where it is currently
Even though these are grounds for arrest, it doesn’t mean the prosecutor can prove the case against you. This is a case where you can use the no driving defense and, in many parked car DUIs, it will work.
You could also have a defense if you drank after you drove. For example, if you bought a bottle of whiskey, drove sober, and later pulled over to drink, you are not guilty of DUI.
“Probable Cause” and Parked Car DUI
Another defense against parked car DUI is probable cause. By law, police cannot stop or arrest you unless they have reason to believe one of two things:
- You have committed a crime or are in the process of committing a crime, or
- You or someone with you needs help.
If you were sitting peacefully in a parked car, they may have no probable cause at all. If this is the case, they never should have detained you or investigated DUI in the first place.
Police usually try to justify probable cause in several ways:
- They had a report of you causing trouble (or someone matching your description)
- Someone reported you stumbling or acting strangely
- Your car was on the side of the road and they checked to see if you needed help
- You were sleeping in the car (if that is illegal in your local area)
Your DUI lawyer can challenge probable cause. If police never had a legal reason to stop you in the first place, the arrest is invalid and you could get the charges dropped.
“Attempted DUI” in California
In addition to normal DUI laws, California has a statute against attempting to commit crimes like DUI. Attempted DUI means you are not guilty of having driven under the influence, but you were under the influence and intended to drive. This is a crime largely because it allows police to stop you before you drive and prevent a potentially dangerous incident.
An attempted DUI charge can work for or against you. If you have a strong “no driving” defense, it may be better to fight your DUI charge completely. But if the case is less clear, your lawyer may be able to get your charge downgraded to attempted DUI. This is a much better option because:
- There is no requirement for the courts to notify the DMV and start the license suspension process
- There is no requirement for DUI school
- “Intent” crimes typically carry half the sentence of the real crime, meaning you would face a maximum jail sentence that is only half as long as a DUI sentence, and potentially no jail at all.
Attempted DUI does not count as a prior offense if you are ever arrested for DUI in the future.
What if I was asleep in the car?
Many people arrested for DUI in a parked car were actually sleeping. This is not illegal by state law, but some areas have local laws against it. If this is the case then police would automatically have probable cause to detain you if they saw you asleep in a car, or had a report of you sleeping in a car. Once they speak to you, they would look for signs of intoxication such as red eyes and slurred speech. In these situations they will usually ask you to perform field sobriety tests or even to take a breath test.
Even if they have a valid reason to approach you, however, you are still not guilt of DUI unless you actually drove the car. All the same rules apply.
You Can Win Your Parked Car DUI Case
Have you been charged with DUI? We can connect you with an experienced Los Angeles DUI lawyer and get you a FREE consultation. Fill out the form to the right or call (310) 862-0199 and get your free consultation today.