There is a common belief that law enforcement will not move forward with a DUI arrest if a person is not driving their vehicle at the time of contact.
While not driving is a powerful defense for a DUI charge, there may be circumstances in which an impaired motorist can be arrested by law enforcement without ever seeing the vehicle in motion.
For example, an individual may have been drinking at a bar and felt too impaired to drive afterwards. They may choose to sleep it off in their car. He or she might place their key in the ignition for heat or air conditioning, without ever moving the vehicle.
The person may be under the impression that they are safe from a DUI arrest. After all, no one is under any danger if the car is not moving and law enforcement has no reason to make contact.
This is a false assumption. Although the likelihood of a motorist being contacted by law enforcement is low in this kind of situation, they are not automatically safe from being arrested for DUI. Law enforcement may make the presumption that the person was in control of the vehicle, leading towards further investigation.
How Non-Moving Violations Can Lead to a DUI Stop
It's self-evident that drivers cannot be stopped for moving violations such as speeding or running a red light if their car is not in motion.
However, there are non-moving violations that can lead an officer to approach a vehicle and pick up on signs of the occupant's impairment.
Non-moving violations include:
- Expired tags
- Broken lights
- Being illegally parked
- Worn tires
- Illegally tinted windows
These violations can lead towards further inquiries by law enforcement. If a police officer approaches a parked car to check out a non-moving violation, the officer may observe signs of impairment on the occupant including the smell of alcohol, slurred speech or balance issues. The officer might choose to administer a breath test.
The definition of a "driver" under California Vehicle Code Section 305, namely someone who is in physical control of a vehicle, can give police leeway and allows circumstantial evidence to be brought.
A police officer might use the fact that keys were in the ignition of a vehicle, or that the engine was running, to show that the driver was in control of the vehicle while impaired.
The definition of "driving" can be open to interpretation by the California courts. In the 1993 case of
In re Queen T,
a minor was judged to be driving a car when she steered the vehicle even though somebody else was in the driver seat operating the brake and the accelerator.
DUI cases often raise many questions, and motorists should be aware of potential pitfalls.
It's always preferable for drinkers to get a designated driver who has not been drinking alcohol or to take a taxi or Uber service home from a bar.
Drivers who fear they are too impaired to drive and end up in their vehicles should not put the key in the ignition and should ensure the car is turned off. Avoid falling asleep in the driver's seat. The back seat may be a better option. Drivers who believe they are impaired should not attempt to move their cars, even if it's just a few feet.
If you or a loved one have been arrested for a "non-moving DUI", call the experts at the Law Offices of Virginia Landry. The legal firm has the tools and resources available to challenge DUI cases where there is no driving involved.
For more information,
contact the Law Offices of Virginia Landry at 949.585.7400