Can I get a DUI in California while sitting in a parked car, or can I fight the charge? 17 Answers as of February 14, 2011

A cop came to my window and asked me to step out of the car that I was napping in after a night out. I was arrested while sitting in my car, which was running. When I did step out of the car, he made me take a few sobriety tests, but not a Breathalyzer. I did not have my rights read to me until reaching the station. I blew a 0.08. Can I get my charge dropped because of this?

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Law Office of Eric Sterkenburg
Law Office of Eric Sterkenburg | Eric Sterkenburg
All criminal cases are fact driven. The answers here are general answers as to what you may expect from the information you have provided. Sometimes on the same facts, courts may come up with different results. You can be convicted of a DUI if sitting in a parked car with the keys in.
Answer Applies to: California
Replied: 2/14/2011
Law Offices of Lawrence Wolf
Law Offices of Lawrence Wolf | Lawrence Wolf
You have a very strong case and do not plead guilty.
Answer Applies to: California
Replied: 2/10/2011
The Law Office of Harry E. Hudson, Jr.
The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
It is possible to have such a charge. It is also possible to beat the charge. Where you were napping and the circumstances of that would be important to a defense of just taking a nap. No need to read you your Miranda rights until cop wants to interrogate you in a custodial setting. A definition of such a setting depends on the circumstances. A point 08 can be defensible. See a DUI attorney.
Answer Applies to: California
Replied: 2/9/2011
Law Office of Thomas F. Mueller
Law Office of Thomas F. Mueller | Thomas Mueller
It is not against the law to be UI while sitting in a car. However the D. A. usually tries to prove you were DUI by circumstantial evidence. The fact that the engine was running doesn't help. If you can claim that you drove after driving it is a defense. We handle many of those cases. Call our office if you want more info or wish to retain counsel.
Answer Applies to: California
Replied: 2/9/2011
Law Office of Evan E. Zelig
Law Office of Evan E. Zelig | Evan E. Zelig
To answer your question simply. YES. You can be arrested for DUI while sitting in a vehicle sleeping, especially when the vehicle is running or the keys are anywhere in your control. The only way to safely avoid that is by locking the keys in the trunk and out of reach. I do recommend you seek an attorney in your local county to assist you with this to attempt to get the charges dismissed or reduced. If you are located in the North Bay area of California please feel free to call me for assistance.
Answer Applies to: California
Replied: 2/9/2011
    Mettias & Associates
    Mettias & Associates | Jimmy Philip Mettias, Esq
    Thank you for submitting your question to our firm, METTIAS & ASSOCIATES. It does sound like you have a case and I suggest meeting with an attorney to discuss the details. We would be happy to schedule you a FREE consultation with one of the attorneys in our office. Please call us. Looking forward to speaking with you.
    Answer Applies to: California
    Replied: 2/9/2011
    Law Offices of Ryan P. Murphy
    Law Offices of Ryan P. Murphy | Ryan P. Murphy
    You might not be able to get the charges completely dropped, but you can save your driver's license and thousands of dollars.

    In your situation, hire a good private DUI Attorney. This individual might be able to keep you driving, keep a DUI off your record, and save you a lot of money.

    Should you have any questions or concerns, feel free to contact my office at your earliest convenience.
    Answer Applies to: California
    Replied: 2/8/2011
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    You can definitely fight the charge. Can you win? Maybe. The problem is that the car was running.The District Attorney can bring the charge against you, but you could certainly fight the case, and you should. I would never plead to a DUI, or even a 'Wet Reckless' (CVC 23103.5), which is still a DUI. Your blood alcohol content could hardly be better. You can argue that you just finished drinking when he came up and you were just getting warm in the car, not driving. The longer it was after your arrest, or when the officer first approached you until you tested at the station, the better. You can argue that your alcohol content was rising and that you were less than 0.08% at the time the officer detained you. A jury might very well see it your way, in that you did not drive after drinking,but were responsibly napping until your blood alcohol level went down after leaving the bar/party/etc. By the way, you should not have consented to the Field Sobriety Tests. No one should. Spread the word. You only have to consent to a blood or breath alcohol test (California's 'Implied Consent' law).
    Answer Applies to: California
    Replied: 2/8/2011
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    It is possible to get a DUI and have your license suspended even though you were sitting in your car at the time you were arrested. This does bring a good defense though. I have had DUI charges dismissed and reduced on cases that are similar. I have also had DUI charges dismissed and reduced when there is a marginal Breath test result of .08. Call me or visit my website for more information. I would be happy to talk to you in further detail about your case. Either way, I recommend that you consult with and retain an attorney to help you fight this.
    Answer Applies to: California
    Replied: 2/8/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Very possibly. First of all, your reading is at the borderline, which makes your case great. Second, DUI requires actual movement of the car. Third, the fact that you were resting in the car (instead of driving) is a mitigating factor which a good DUI specialist can use to your advantage when negotiating with the prosecutor. Without an attorney, however, none of these factors will see the light of day.
    Answer Applies to: California
    Replied: 2/8/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    If you got charged, then you got one. You now get to defend it. Police and prosecutors don't take the time to research, prepare and file charges just to drop them.

    You face charges that could put in jail. There is no magic wand to make this go away. Unless you know how to effectively represent yourself in court, hire an attorney who does. He will be able to use the lack of BA test to your advantage, unless you actually refused the test. If this is in SoCAL, and youre serious about hiring counsel, feel free to contact me.
    Answer Applies to: California
    Replied: 2/8/2011
    Law Office of Andrew Roberts
    Law Office of Andrew Roberts | Andrew Stephen Roberts
    The answer is YES. You can fight it-but get a good attorney.
    Answer Applies to: California
    Replied: 2/8/2011
    The Law Offices of Robert L. Driessen
    The Law Offices of Robert L. Driessen | Robert L. Driessen
    An element that must be proved by the prosecution is that you drove the vehicle. Understand that even a single inch is considered driving. Yes this is certainly a case that you need to hire an attorney for. Also make sure you contact the DMV within the first 10 days of your arrest. The fact that your Miranda rights were not read to you is of no consequence until you are in custody and being interrogated that right does not yet apply. You need an attorney.
    Answer Applies to: California
    Replied: 2/8/2011
    Law Offices of Thomas D. Nares
    Law Offices of Thomas D. Nares | Thomas D. Nares
    The quick answer is YES. The DA would have to prove that you had "control" of the vehicle. Simply sitting in the driver seat, assuming that the engine is not running, would be hard for the DA to prove that this constitutes control. Any lawyer that you would hire would have to research the current status of the "case law" in order to give you a good opinion regarding your chances at trial. It sounds like you probably have a triable case though. Good luck.
    Answer Applies to: California
    Replied: 2/8/2011
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    Miranda warnings are tv fantasies. The only time they come into play as if they don't read you your rights and then YOU MAKE A STATEMENT.

    Your problem is that the engine was running making it highly unlikely that someone else was driving, left, then you crawled over into the driver's seat and fell asleep. Usually they touch the hood and if cold they do not write you up but if warm they do. You did better than have a warm engine.

    You need a lawyer to get either one of these"

    1. You argue that your BA was going up so it only got to a .08 well after they busted you, so when they busted you (when you were driving) you were under a .08.

    2. If that doesn't work you certainly should be able to get a wet reckless.
    Answer Applies to: California
    Replied: 2/8/2011
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