DUIs can be a pain in the neck for anyone who enjoys the convenience of private transportation. Not only do you lose your driving privileges, but DUIs also carry heavy legal penalties in the state of California. Sadly, the criminal fines, probation, and jail sentence are just the tip of the iceberg. Anyone unlucky enough to have a DUI on her or his record will likely feel the ripple effects on his or her career and other aspects of his or her life, such as rising insurance rates.

Did you know that a DUI or DWI arrest may occur even when someone is simply sleeping in her or his car? How is that a possibility? Let’s find out!

According to the California Vehicle Code, the legal definition of a DUI is when a person is consciously operating a vehicle in motion while under the influence of drugs or alcohol. But like all laws, there’s a catch. Section 40300.5 does not mandate that an officer of the law has to witness a drunk driving. Notably, this code allows police to make an arrest even if the violation did not happen before their eyes. The law only stipulates that the officer can make an arrest if he has probable cause that:

“The person is involved in a traffic accident, observed in or about a vehicle that is obstructing a roadway, will not be apprehended unless immediately arrested, may cause injury to himself or herself or damage property unless immediately arrested, or may destroy or conceal evidence of the crime unless immediately arrested.”

So, back to our main question; Can you get arrested for sleeping in your car? The short version? Yes. However, whether or not your drunk sleeping will lead to an arrest entirely depends on an officer’s liberal interpretation of road safety rule in Section 40300.6, as well as the tiny details around you, which could inherently build a case against you. As in the case of  Mercer vs the DMV, the court held that observed movement is not a necessary precursor to a DUI conviction. However, some proof of intent is required to pass sentencing.

Getting arrested merely for sleeping in your car may seem preposterous, but it happens. Luckily here are possible defenses that might work against prosecution:

1. You can prove that your blood alcohol level was not above the .08 limit at the time of the arrest. The alcohol concentration in your blood typically takes 20 – 90 minutes to rise, but this also depends on whether or not you had a meal before indulging. Afterward, the level begins to drop. It helps to know how alcohol may affect your BAC level. Here is more insight from our “Am I Over 0.08% BAC?” article.

2. You can also challenge the BAC test results done post-arrest as these tests also have a history of marginal errors. We have an article on why chemical tests, including BAC tests, are prone to lab errors and how you can always challenge a breath test.

3. You can also argue that you were not the driver. The prosecution still has to prove intent. Merely sitting or sleeping in the vehicle is not probable cause for an arrest. They still have to prove that you intended to operate the car.

How to play it safe
Considering all we have discussed above, here are a few ways you can distance yourself from a potential DUI arrest.

1. Keep your keys away from the ignition and yourself. If they can’t prove that your engine was even on, the prosecution will have a more difficult time pinning you for an attempted DUI.

2. Consider sleeping in your trunk or the backseat. Doing this will further distance you from the intent clause.

3. The prosecution can also build a strong case just from where you parked your car. A car parked on the side of the road is more incriminating than a vehicle in a parking lot or a garage. The former points to evidence that you may have changed locations.

In the case of drunk sleeping in your car and DUIs, California tends to favor police over the accused. Did this scenario happen to you or someone you know? If you are on the verge of a DUI conviction, contact us right away. Don’t hesitate to chat with us on our website or call 888-DUI-HERO right now! We are here for you.

The DUI Attorney Don Hammond


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