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DUI in a Parked Car | LegalMatch Law Library

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Can I Get a DUI While Parked?

Yes. A person can get a DUI while their car is parked if the prosecutor can prove that the driver was actually driving while intoxicated and that the police officer at the scene reasonably saw that the driver had the intention to drive or was getting ready to drive while intoxicated at the time of the traffic stop.

The police and prosecution call this action “attempted DUI”. Attempted DUI means you are not guilty of having actually driven under the influence, but you were under the influence of drugs or alcohol and intended to drive. This is a crime is set in place mainly because it allows police to stop you before you drive and prevent a potentially dangerous incident.

What If I Was Asleep in the Car?

You can still get a DUI if you were sleeping in the car in many states. This is not illegal by state law, but if there was signs of intoxication and there was signs that you were driving under the influence and had recently pulled over to sleep, the police can still have probable cause to arrest you for DUI.

It also depends on where in the car you were sleeping. If you were in the driver seat, then the police can pin the “attempted DUI” reason on you and arrest you for DUI. 

How Can Someone Who Was Not Driving Be Issued a DUI?

It seems backwards that someone can be arrested for "driving under the influence" if they were not actually driving. Still, the police have no idea if the person was about to drive or not, and in the interests of public safety, many courts look at whether the driver was attempting to drive or reasonably could have been driving, and permit prosecution accordingly. 

How Does the Court Determine Whether a Person Was About to Operate a Parked Vehicle?

Courts will typically look to all of the circumstances when making their determination as to whether a person was about to operate a vehicle. Suppose the vehicles lights were on, the parking brake released, and the keys were in the ignition. 

These are indicators that an individual was about to operate their vehicle and would be reasonable grounds for charging a person with a DUI. The prosecutor’s DUI argument depends on the settings surrounding the event and the court may evaluate the following to determine if the driver is guilty of a DUI while in a parked car: 

  • Driving-in-Fact: A court will look at whether the car was turned on, keys are in the ignition, the parking brake was on or off, and whether the car was “operating” at the time of the police stop. If the driver looks like he or she was attempting to drive, then he or she could be
  • Attempted DUI While Parked: The court will look at different factors on whether the driver was going to drive after being parked such as turning on the ignition, or putting personal belongings in the passenger seat can be used against a person in court.
  • Circumstantial Evidence of DUI: The court can also look at whether the car was being driven or going to be driven while parked such as  a warm engine, tires, or a defendant’s admission that he or she drove drunk can all be used to convict of DUI.

Can I Prevent a Police Officer from Issuing a DUI?

Individuals that consume large amounts of alcohol can take reasonable steps to prevent a DUI from ever being issued. These steps include:

  • Find a Designated Driver: The best way to never get into a situation regarding a DUI is to have a designated driver;
  • Don't Sleep in the Front Seat: An intoxicated person can avoid being put into a situation described by not being present in an automobile while intoxicated. Sleep in the backseat of the car if necessary;
  • Don't Look Ready to Drive: Make sure the ignition and lights are turned off;
  • Take the Keys out of Ignition: Make sure the car is turned off and the keys are out of the ignition or with someone else; and
  • Go to a Nearby Hotel: Best thing to do is go to a nearby hotel if you need to sleep before driving. 

Should I Consult an Attorney?

If you are facing a DUI, a criminal defense attorney will be vital. A lawyer can help to evaluate the evidence against you, determine whether the field sobriety tests were administered correctly, and if you were parked, can attempt to undermine the officer's determination of probable cause.

Photo of page author Ki Akhbari

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 01-19-2018 01:01 PM PST

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