Many people go out for dinner and plan on only having one or two drinks and then driving home. However, the situation may have changed, and the driver drinks more than they expected. Without making other plans to get home, by the time the driver gets to their car, they may realize they have had too much to drink and are and should not drive. This decision can help the driver avoid an accident, injuring others, and avoid a DUI. However, even if the driver is sitting behind the wheel in a parked car, they may still risk arrest for impaired driving.
When Are You Considered to be “Driving” for a DUI?
Under California Vehicle Code Section 23152(a), “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” To get a criminal conviction for drunk driving, the prosecutor has to prove 2 elements:
- The defendant drove a vehicle; AND
- When (he/she) drove, the defendant was under the influence of an alcoholic beverage.
In most cases, the “driving” part is clear. If the vehicle was pulled over for a traffic stop, the person behind the wheel is generally considered to have been driving. However, what if someone is just about to drive away, at what point are they “driving”?
According to California case law, a DUI requires proof of volitional movement of a vehicle. However, the movement may be very slight. For example, if a vehicle is parallel parked and the driver backs up a couple of inches to clear the vehicle in front, moving the vehicle a couple of inches may be considered driving.
The vehicle does not necessarily need to be on or in gear in order to get a DUI. Voluntary movement of the vehicle is enough to be driving. For example, putting the car in neutral and rolling a few inches can be considered driving.
In court, even if there is no proof that the individual was driving, it can be established through circumstantial evidence. For example, if a vehicle was found parked on the freeway, with the engine running, and a person behind the wheel, the prosecutor may try to show the individual was driving even if no one saw the vehicle move.
Why the Police Arrest Someone in a Parked Car?
Many people have heard that they can get a DUI in a parked car by sitting in the driver's seat or having the key in the ignition. Some people are arrested for sitting in a parked car after drinking alcohol but that does not mean they should be convicted. A DUI still requires some movement of the vehicle. Instead, the prosecutor may rely on the threat of a DUI conviction to get the defendant to plead guilty, even if they did not technically commit a crime.
Defenses to DUI When the Vehicle is Parked
There are a number of reasons why an impaired person may be inside a parked vehicle. It is becoming more common for people to be living out of their vehicles in California. With the high cost of housing, lack of affordable housing, and limited resources for the homeless, many people have no choice but to live in their car until they can get back on their feet. Other reasons for sitting in a vehicle while not driving include:
- Occupant felt too impaired to drive home
- Occupant was concerned for safety outside the vehicle
- Occupant was inside to stay warm or dry
- Occupant was inside to charge their phone to call an Uber
In some cases, sitting in a parked car is the safest place to be for an impaired person, so they can sleep off the effects of alcohol until they can safely drive home. Do not let the prosecutor scare you into taking a plea deal without understanding your legal rights. You may have a stronger legal defense case that you realize.
DUI Defense for East Bay Drivers
The penalties for a drunk driving conviction in California are severe. DUI penalties and restrictions may include jail time, loss of your license, DUI school, and years of probation. East Bay attorney Lynn Gorelick has more than 37 years of DUI defense experience and understands how to approach each case for the greatest chance for success. Representing individuals in Alameda County and Contra Costa County, Lynn Gorelick is familiar with the local DUI laws, police officers, and the prosecutors involved. Contact East Bay DUI defense attorney Lynn Gorelick today.