Orange County DUI Checkpoints 07-08-2017


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Orange County DUI Checkpoints 07-08-2017

Orange County DUI Checkpoints 07-08-2017

DUI Probable Cause

DUI Checkpoints in Orange County this weekend include DUI saturation patrols both Friday and Saturday, looking for DUI in Laguna Beach, and also a DUI Checkpoint to catch Santa Ana DUI drivers.

Orange County DUI Checkpoints 07-08-2017 Santa Ana Checkpoint

The Santa Ana DUI Checkpoint will take place on July 8th, 2017, Saturday Night.  It will be held between Warner Ave, between Main Street, and Flower Street, and will be run by the Santa Ana Police Department. 

Orange County DUI Checkpoints 07-08-2017 Laguna Beach

The Laguna Beach Police Department will be holding DUI Saturation Patrols, to specifically look for people that are driving under the influence in Laguna Beach.

What are Saturation Patrols? Saturation Patrols have been found to be far more effective than DUI checkpoints in term of Orange County DUI Arrests.

At both of When possible, specially-trained officers will be available to evaluate those suspected of drug-impaired driving (DUID), which now accounts for a growing number of impaired driving crashes.

What is a Saturation Patrol?

A Saturation Patrol is special enforcement where trained officers, with DUI testing equipment, drive around high potential areas for DUI arrests in Orange County, looking for traffic violations that might indicate someone is drunk driving.

Why does law enforcement have Orange County DUI Checkpoints?

DUI Checkpoints are even admitted by law enforcement to be less effective than other means of removing drunk drivers from the road. But, even though DUI checkpoints don’t work, police state they had a deterrent effect preventing people from driving in the first place.  The truth is that funding in grants from the California Office of Traffic Safety (OTS), MADD, and the Federal Government ensure DUI checkpoints are used first before other measures.

Are DUI checkpoints legal?

The US Supreme Court, as well as the law in California, including the Ingersoll v. Rand decision, makes DUI checkpoints legal, as long as they follow certain criteria, including:

  • Decision making by supervisors: This is important to ensure that checkpoints aren’t set up in “arbitrary and capricious” locations. The court didn’t say so, but we’re guessing they wanted to avoid any accusations of racial profiling.
  • Limits on discretion of field officers: The theme of distrust of the officer continues. Strict procedures and a random selection of drivers according to a preset pattern (every third driver, for example) are suggested to avoid abuse.
  • Maintenance of safety conditions: We’re not sure how it applies to constitutionality, but the court wanted lots of bright lights and signs.
  • Reasonable location: The location should be based on relevant factors, such as areas with high incidences of DUI or DUI accidents.
  • Time and duration: The timing should be set to optimize the effectiveness of the checkpoint.
  • Indications that the checkpoint is official: It should be clear to drivers, for notice purposes, that this is a law enforcement stop, and not just construction or something sinister. Lights and signage should be visible for the sake of notification to the drivers. Drivers also can’t be pulled over for avoiding the checkpoint, unless they violate a law to do so.
  • Length and nature of detention: The time of the stop should be minimized as to infringe on a person’s rights as little as possible. That means peek at the eyes, smell for booze, and look for cans. If there are no signs of intoxication, the driver should be let go. If they look or smell drunk, field sobriety tests are appropriate.
  • Advance publicityIngersoll was in favor of advance publicity. It referred to the deterrent effect and stated that the notice minimizes intrusiveness to a person’s rights. In 1993, the court in People v. Banks stated that publicity was not a requirement, but it certainly helps.

Those are the Orange County DUI Checkpoints 07-08-2017 scheduled for this weekend.  Be careful out there.  Please contact our Orange County DUI Defense Attorneys if you have a question or need our help.


Contact our firm if you have any questions about Orange County DUI Checkpoints.

Don’t delay contacting us if you were arrested for a DUI.  We can start you on a plan of action today that will help your court date later. The DMV needs action within 10 days of your arrest.  Contact us today.


Selling Marijuana from California to other states

Selling marijuana from California to other states

DUI Under the Influence of Marijuana
As marijuana dispensary license attorneys, and members of the National Organization for Reform of Marijuana Laws (NORML), we have noted that a number of clients, or people in the cannabis industry have begun not only shipping and selling marijuana and cannabis products, extracts, and concentrates to illegal states (that is, states that have not yet passed any laws making marijuana legal). They have been very vocal about the legality of this being based upon declaring residents of those states California Patients.
Selling marijuana from California to other states is allowed, they claim, that the Full Faith and Credit clause requires the states where it illegal, to give California Laws full faith and credit, as required by the US Constitution, despite the problems with banking and marijuana businesses and marijuana licenses.
Some marijuana businesses are even setting up tele-med visits, via Skype or FaceTime, with California doctors, obtaining a medical recommendation, and encouraging their new “patients” to set up ‘collectives’ through them in in the states where marijuana is legal. They indeed are selling marijuana from California to other states, and are shipping cannabis products to these states.

Selling marijuana from California to other states – the US Constitution Full Faith and Credit Clause

Here’s how another jurisdiction (the Oregon Court of Appeals, which is part of our Ninth Circuit Federal Courts here in California), handled a similar argument.

The appeals court stated that the legal arguments underlying defendant’s motion to suppress — that the Full Faith and Credit Clause and the Privileges and Immunity Clause preclude his arrest and prosecution — are wrong. Article IV, section 1, of the United States Constitution provides, “Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State.”

Defendant argues that this clause requires Oregon to apply the CCUA, a “public act,” to California residents when they are in Oregon. According to defendant, Oregon must do so because one state’s laws apply in a sister state unless the home state law “conflicts” with the host state’s law, and California’s medical marijuana law does not conflict with Oregon’s medical marijuana law. The state, citing Franchise 619*619 Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494, 123 S.Ct. 1683, 155 L.Ed.2d 702 (2003), responds that the clause “does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.”

We need not decide which interpretation applies in this case, however, because defendant’s argument is fundamentally misconceived. Even if defendant could persuade us that the clause means what he says it does, it would avail him nothing.

The CCUA by its terms provides nothing more than a defense against the enforcement of certain California marijuana laws:

“Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”

California Health and Safety Code § 11362.5(d). The CCUA does not (and could not) provide a defense against enforcement of Oregon’s marijuana laws in Oregon. Put another way, the Full Faith and Credit Clause requires (at most) that a state give effect to rights established between parties that arise from judgments, agreements, or statutes originating in other states. See Delehant v. Board on Police Standards, 317 Or. 273, 282, 855 P.2d 1088 (1993). The CCUA establishes (again, at most) rights between qualified California residents and the state of California — not the state of Oregon. Thus, in this case, Oregon does give full faith and credit to the CCUA, because Oregon does not (and could not) enforce California’s marijuana laws against defendant.

State v. Berringer, 229 P. 3d 615 – Or: Court of Appeals 2010, online for free, here:
So it would appear that the cannabis businesses that are shipping, hoping that becuase it’s legal in one state, it should be considered legal in another, would have an invalid legal argument.
However, in response to this case, Oregon amended the rules to allow out of state patients to register in Oregon, a law which continued until the Legislature repealed it after Marijuana Legalization in 2015.
Likewise, that may not be a problem for any distribution here in California.  Selling marijuana from California to other states has legal problems inherent in the differences in state laws.  Business owners that deal in Marijuana should be careful when shipping to other states where it is not legal.

Contact us

 Contact us
Contact us today if you need advisement, or dispensary licensing, for your growing, warehousing, or marijuana dispensary business or operation.  We can help you navigate the laws and stay legal.

Using an expert witness in a DUI case

Using an expert witness in a DUI case

In the courtroom

An expert witness can be helpful in a DUI case to help provide proof in support of defenses that require particular specialized knowledge. Using an expert witness in a DUI case can be extremely helpful in proving a number of issues, as discussed below.

The primary purpose of any expert, when hired by either side, is to educate – that is to provide evidence in the form of an expert report and/or testimony that educates the DMV hearing officer, or the judge, or even the jury, in a way that presents information that is helpful to a client, towards a certain conclusion.

Some of the information you might want to present in a DUI case could be presented by someone who is not an expert.  The problem with using non-experts is that a DMV hearing officer, or a judge hearing the case, might exclude or strike down layman testimony as lacking proper foundation or requiring an expert witness to give an opinion as to any complex issue that requires an expert. For that reason, courts and other hearings require experts who can provide their qualifications, experience, and opinions.

There are also reasons in a DUI where you will want an expert witness as a strategy in defending a DUI case. Using an expert witness in a DUI case can give particular testimony extra weight, authority, and emphasis.  

Expert witnesses are also subject to cross examination by the other side.

The law on who is an expert witness, and what they can testify to.

California Evidence Code section 720 contains the authority under the law, defining what an expert witness is, and what they can testify to:

720.  (a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.
   (b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.

Using a forensic alcohol expert witness in a DUI case at the DMV and in court

Forensic toxicology is the study of the presence of drugs or alcohol and their affects on the human body and human behavior. A forensic toxicologist, therefore, is able to testify about the concentration of alcohol and/or drugs in a person’s body and how impaired that person might be, given such a concentration. Using an expert witness in a DUI case that knows about intoxication and impairment, key issues in any DUI is always helpful.

A toxicology expert may also testify about flaws in breath or blood tests, such as an incorrectly calibrated breathalyzer machine or the use of improper scientific methods during the analysis of a blood sample. The prosecution will usually also provide their own experts, including forensic toxicologists who work in crime labs for the police. Testimony provided by each side’s experts can and often does determine the outcome in a DUI trial, so it is imperative to have qualified experts on your side.

Using an expert witness in a DUI case may be required for certain complex issues. As a science, blood testing and breath testing is the domain of experts who are familiar with the studies and requirements for accuracy.

An expert can be extremely helpful in that the expert can comment on, and possibly criticize, the way in which an alcohol or drug level was determined in a DUI class. They can outline the way why those results might be inaccurate. This can include incorrectly calibrated breathalyzer machines, incorrect use of the machinery, or inexact scientific methods of blood analysis. A common use of an expert witness in a DUI is to fight the retrograde extrapolation typically presented by the prosecution – which is often improperly used to speculate as to how many drinks the defendant or driver consumed, or might be used to estimate what the blood alcohol level was at the time of driving for the defendant.  That evidence is often based upon a number of assumptions, each with a wide range of possibilities, that the expert can easily point out.

Using an expert witness in a DUI case at the DMV, can lead to a showing that the DMV has insufficient evidence, or invalid evidence, as to one of the relevant issues at a DMV hearing — include the major issue of whether the person was above a .08% alcohol level at the time of driving, or whether the person was above a .01% if under the age of 21 or if on DUI probation.  Rising blood alcohol defenses, or errors in the maintenance, calibration, or measurement of breath or blood in a DUI case, is best presented through an expert witness.

In court, all elements of a DUI must be proven beyond a reasonable doubt. Showing a judge, jury, or prosecutor an expert witness report detailing facts supporting a rising blood alcohol defense, impairment of drugs (and interactions between drugs, or with alcohol) for DUI Drug (DUID) cases,  or showing any errors in the maintenance, calibration, or measurement of breath or blood in a DUI case, is best presented through an expert witness, who can also testify to the state’s standards and the scientific literature and studies that support defenses in the case.

In most cases, our Orange County DUI attorney uses Henry Greenberg, of Forensic Analytical Consultants, here in Orange County, although we have used and consulted with expert witnesses Dewayne Beckner, Daryl Clardy, and Okorie Okorocha, as to forensic alcohol testing, detection, and error issues.

Using police procedures expert witness in a DUI case

Often, police will act in a way that violates their training, or explicit procedures under the law, or the rules from their own department.

The most common one known by almost everyone is the right against self-incrimination – the Miranda rights, read by police before any custodial interrogation.  Any confessions, or admissions, or statements, that were made without these warnings while in custody or detention, can be the subject of a motion to exclude those statements as evidence.

More importantly for a DUI case in court, or at trial, our Orange County DUI Lawyer will obtain the DUI police procedures as to observation and contact with a driver, field sobriety testing, safety of the officer and the testing subject, and the methods of collection of evidence to be used in the case, can be testified to by an expert.

With DMV hearings in a DUI case, one of the issues at the DMV hearing is whether or not the officer followed all the procedures and laws to place someone under a “lawful arrest”.  The issue of whether that occurred or not can be the domain of an expert witness opinion also.

Our DUI attorney Orange County has used expert witness Dewayne Beckner, who used to train police officers in his role as leader of the Los Angeles County Sheriff’s Department alcohol detection unit, for testimony related to violations of police procedures, the law or standard of care violations, and problems with alcohol detection and procedures.

Using a field sobriety test expert witness in a DUI case

A field sobriety test expert can comment on the validity of the administration of the test or tests are given to the accused and point out any mistakes that may have been made by the arresting officer.

With DUI cases, officers are trained in alcohol detection, stopping potential drunk drivers, and conducting field sobriety tests using one standard training course – the NHTSA approved FST student course, using the NHTSA manual.  That manual and course strictly follow the procedures for each field sobriety test, which matches, and are calibrated to, the validation studies that correlated certain behaviors and test performance with being above a .08% or a .10% alcohol level.

As it states in the NHTSA FST manual used to train all officers in the USA, if the tests are not given exactly as trained or instructed, the test results may be invalid.

Although police who are on DUI saturation patrols or make DUI arrests and conduct DUI testing are trained to follow the field sobriety tests, not all police officers do the test perfectly, under all conditions.  That can be used to show a judge, or a jury, that the test should be considered invalid because it was not utilized as it was designed to be given.

Most forensic alcohol experts can also testify as to the field sobriety tests, the standardized FST testing procedures, the history of the FSTs, the validation studies, and how they should be done correctly.

Using an expert witness in a DUI case can also help you prove that the DMV cannot meet their burden of proof. At the DMV, one of the issues that must be proven is whether or not the DMV has proven that the police had sufficient probable cause to conclude that a person was impaired, and to arrest.  That is usually shown through the FSTs, so pointing out via an expert how those tests were done incorrectly can help win the DMV hearing.

An expert witness for these issues can also be another DUI defense lawyer, as another DUI lawyer Orange County that specializes in DUI are certified in field sobriety testing at the student level, and have taken the instructor FST course, and have reviewed hundreds, sometimes thousands, of field sobriety tests.

Using a field sobriety test expert witness in a DUI drugs (DUID) case

Cases involving Driving Under the Influence of Drugs (DUID) usually involve a DRE – a “Drug Recognition Expert”.  This is a police officer that has gone through more extensive training to detect a wide variety of prescription and illegal substances, towards gathering evidence to support a charge of driving under the influence of any controlled substance or illegal substance.

That could be a case for driving under the influence of marijuana, driving under the influence of Ambien or other sleeping medication, driving under the influence of any illegal drug, or driving under the influence of any of a number of prescription drugs.

Using an expert witness in a DUI case involving drugs happens in every DUID case. The prosecution qualifies and uses a DRE police officer as an expert – their training, and experience with cases usually allow the court to recognize them as one.  Countering that with a drug recognition expert of our own, as the defense might help explain the behavior that the DRE uses as evidence of impairment through drugs.  In many cases, there are other explanations of particular behavior.  Sweating, a rapid pulse, or other behavior might be explained, at least in part, by the nervousness from being pulled over by the police.

Like field sobriety test experts, anyone with equivalent training to the police DRE expert in a DUI drugs (DUID) case can counter the evidence at trial, or at the DMV. Certain medical expert witnesses (see below) can also be helpful, or can be used, to testify as to the effects of stimulants, depressants, psychedelics, and the interactions between various types of drugs or medicines, as well as how long the drug might stay in the system, and at what levels a person might be impaired.

Using a mechanical expert witness in a DUI case at trial

In some cases, a mechanical expert might be appropriate.  In civil cases, including product defect cases and personal injury cases, mechanical experts are very common.  Mechanical expert witnesses are used to being hired by lawyers and providing expert testimony at depositions, or at trial.

Driving, especially poor driving behavior that was used by the police to justify a stop for suspicion and investigation of DUI, can sometimes be caused by problems with a vehicle’s brakes, suspension, tires, wheels, or alignment.  That can help with the issue of probable cause in a motion to suppress evidence and dismiss before trial, a not guilty on your DUI at trial, and can help to show that there was not sufficient probable cause to win your DMV hearing.

Using an expert witness in a DUI case can help explain not only probable cause but also breath testing issues.  When it comes to a false positive in a breathalyzer test for DUI cases, being involved in an accident that caused the vehicle’s airbag to deploy can often scatter airbag dust, which, through the Tyndall effect, can mimic alcohol in a breath machine.  That dust contains acetones, which can be on the skin, in the mouth, and inhaled in the lungs, and which show up as a false positive for alcohol in breath tests during a DUI arrest.

The airbag dust acetone dust only exists on certain model cars, however, so a mechanic familiar with vehicles and airbags, or any mechanical expert that can give an opinion on the subject, might be enough to create reasonable doubt at trial or at a motion to dismiss in court.

With the DMV hearing in a DUI case, it may also be used to show that the breath test results are invalid. It is an essential issue and part of the requirement under the DMV burden of proof that the DMV shows that a licensee was above a .08% at the time of driving.  An expert can show that the results measured were not truly alcohol, or that other factors contaminated the test to an extent that the alcohol test is not meaningful or useful in the case.  That can win a DMV hearing.

Using an accident reconstruction expert in a DUI case

An accident reconstruction expert is also a common expert witness for civil and personal injury depositions and trials.  Using an expert witness in a DUI case to describe how an accident occurred in detail can help the defense. This type of expert may be used to generally describe and explain how any accident in question occurred, based upon the evidence from the road, the vehicles, and witnesses. In a DUI with accident case, it can show that the accident was not the fault of the driver, in some cases.

The expert may also be able to estimate the speed of the vehicles at the time of impact, find out when the brakes were applied, deduce how fast each vehicle was going before and after impact, and other relevant details that refute or cast doubt on the claims made by the prosecutor.  If an accident was found to be someone else’s fault, that may help mitigate the damage in a DUI case in court, at trial, or at sentencing.

Using a medical expert witness in a DUI case

Using an expert witness in a DUI case for explaining medical issues, symptoms, and effects can help. The are many issues where a medical expert might be helpful in a DUI case.

In breath testing involved in a DUI case, known medical issues such as the creation of alcohol by the body, gastric bypass surgery, acid reflux disease or GERD, or mouth alcohol from dental work, might be a contaminant that can cause a falsely higher reading for alcohol.  Certain conditions, like diabetes, being on a ketogenic diet, or even having aspirin in your system, can falsely inflate the alcohol reading, above the true reading. The driver’s lung capacity, which might have been reduced from smoking, exposure to pollution, or surgery, can also be relevant to a breath test.

With a DUI blood test, a medical expert can testify as to bacteria in the vial, DUI blood testing issues, and defenses, chain of custody or refrigeration of the blood sample, and the correct way to collect or draw blood.  Using an expert witness in a DUI case can cross over to what can be the domain of other expert witnesses. For example, in a DUI case involving alcohol consumption, a phlebotomist is not supposed to use an alcohol swab on the arm before drawing blood, as that can contaminate the sample and prevent measurement of the true reading from the blood.  That is known by both the forensic alcohol community, and the medical community.

With field sobriety testing, a medical expert can testify as to balance issues caused by knee, back, ear/equilibrium, knee, or ankle problems, can testify as to neurological reasons why nystagmus or other symptoms might be present, and can testify as to lung capacity or physical problems that may be relevant

Using an expert witness in a DUI case for more complex medical issues doesn’t have to be expensive either.  A medical expert witness in a DUI case can be the driver’s treating physician, or any specialist with relevant knowledge, who can testify regarding the particular medical issue involved in the DUI case.

When using an expert witness in a DUI case, can the jury be told that you paid an expert witness to give his or her opinion?

Yes.  Using an expert witness in a DUI case can result in the jury being told that the expert was paid by the defense. Under Evidence Code 722 in California, it states:

722.  (a) The fact of the appointment of an expert witness by the court may be revealed to the trier of fact.
   (b) The compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.

Of course, expert witnesses do not work for free, so it’s natural for a DMV hearing officer, a judge at a hearing, or at trial, or a jury to expect that an expert would be compensated for reviewing evidence and providing testimony as an expert.

Could an expert witness in your case be stopped from testifying?

According to Federal Rule of Evidence Rule 702: Testimony by Experts, under the Daubert standard, any testimony supplied has to be based on sufficient facts or data and must be produced and applied through reliable methods and sound principles by the expert. If it meets that criteria, it will then, as Rule 703 says, be regarded as evidence.

In California courts, Evidence code section 352 allows a judge to weigh how helpful the testimony is, against how prejudicial it might be to a fair trial.  The judge makes the final call as to whether or not the testimony comes in, or whether it’s limited as to what the expert can say.  Using an expert witness in a DUI case usually is allowed, as DUI cases rely on scientific evidence and testing, as well as more complex issues.

Although an expert witness may not be free or compulsory, they can be very useful, and helpful, in court, or at the DMV, and with proper use by the best DUI lawyer,  they can help win DUI cases.

Contact us for questions

Contact us

Contact our firm if you have any questions about the use of expert witnesses in a DUI case.  We have much experience in this area, and are happy to help you win your case in any way that we can.


Can you get a DUI for sleeping in your car?

Can you get a DUI for sleeping in your car?

Can you get a DUI for sleeping in your car?

If you know you’ve had too much to drink, sleeping in your car until you’re sober again is the right thing to do, right?  Believe it or not, you can get a DUI for sleeping “it off” in the car, and you could get a DUI in that situation – if the police find indications that you may have been driving drunk.

According to California law, a driver can be arrested for a DUI if they are found sleeping inside their vehicle while intoxicated. In fact, the legislature in California created a separate law that allows for an arrest for sleeping in a car (even if not running) to be authorized by law.  However, several factors are still considered as to whether an arrest will actually be made.

California Law Regarding Sleeping in Car While Intoxicated

The law – California Vehicle Code VC 40300.5

The California legislature enacted Vehicle Code section 40300.5 which doesn’t require that the officer observe driving.  In other words, the law allows for an arrest even if the violation did not occur in front of the officer.
Vehicle Code section 40300.5 provides that an officer is permitted to make a DUI arrest whenever they have probable cause to believe that the person has been driving while under the influence and the person:
  • may cause injury to himself or herself or damage property unless immediately arrested;
  • may destroy or conceal evidence of the crime unless immediately arrested;
  • was involved in a traffic accident of any type;
  • is in or about a vehicle that is obstructing a roadway; or
  • will not be apprehended unless immediately arrested.

Those exceptions above in California Vehicle Code VC 40300.5, favor law enforcement and make it easier for them to prove the driving issue. Given the statement in California Vehicle Code VC 40300.6 that “liberal interpretation of the no observation of driving rule” shall be part of the code, judges and hearing officers, after enactment of that code section have gone out of their way to not make decisions based on the police not observing driving in a DUI case.

As Orange County DUI Attorney Robert Miller has stated, “California case law previously stated that a driver could only be arrested and charged with a DUI if the car was actually moving. There was no chance of an arrest if someone was sleeping in his/her car while intoxicated and the car was not moving.”

The Jury Instructions – CalCrim 2241

In order to prove a case at trial, the jury has to find driving proven beyond a reasonable doubt.  The instruction used to give the jury the law is given below:

CALCRIM 2241. Driver and Driving Defined (Veh. Code, § 305):
[A driver is a person who drives or is in actual physical control of a vehicle.]
[A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight.]
As you can see it still must be proven that the vehicle was moved at some point in the past, even if the officer didn’t see driving.

DUI Caselaw – The Mercer v. DMV Case

Under the California DMV case of Mercer v. Department of Motor Vehicles,(1991) 53 Cal 3rd 753, the court said that you can get a DUI even if the car is not moving:
“We do not hold that observed movement of a vehicle is necessary to support a conviction of drunk driving under 23152.”
The court in Mercer holds that the law required proof of volitional movement of a car before someone can be convicted of a DUI.
However, like elsewhere in law, circumstantial evidence is sufficient to establish this element, and no one has to see driving.

Circumstantial Evidence and a DUI

Circumstantial evidence that may prove you were driving include:

  • An engine or hood that is still warm;
  • Tires that are still warm;
  • A car in any part of the roadway, including slightly over the shoulder line;
  • A vehicle damaged and next to the scene of an accident;
  • Your vehicle’s gear in drive; or 
  • Your keys in the car.

Your failure to explain the absence of any other drivers could also be used against you, or if you deny being the driver or if you fail to give a credible explanation of where the driver is or the driver’s identity.

In one Orange County DUI case we handled to trial, the driver was found in a vehicle asleep and was determined to be intoxicated.  At trial, we showed that his girlfriend had actually left the car to get gas when they had run out, and the jury found our client not guilty of DUI.

As a circumstantial evidence case, everything, from admissions to driving, to observations, (including feeling that the engine was still warm/hot to the touch), is a relevant issue.

Do the police have the right to investigate you if you are sleeping in your car?

Yes.  The law does require that police have to have probable cause to investigate and validly arrest for a DUI.  However, the law allows for police to conduct a “welfare check” to check on the safety of people in a vehicle asleep.  Probable cause to investigate further can be supported by the police if they suspect alcohol, as an individual can be charged with a drunk in public in violation of California Penal Code Section 647(f).
In many cities or counties, there are ordinances against sleeping in a car or at least overnight, which can support the actions of an officer to wake and question you.
There is a “blocking the roadway in any manner” exception in the law under California Vehicle Code VC 40300.6.  Once the police investigate to see if you need help, and smell alcohol, or observe anything that leads to a suspicion of impairment, they have enough probable cause justification to investigate further, and eventually conduct a “search” (the breath or blood test).
Attempted DUI: In California, you can also be arrested, or charged with, attempted DUI for trying to or exhibiting the specific intent to drive even if your car is still parked.
The attempt of any other crime is a separate crime, listed under Penal Code Section 21(a). An attempt is a “specific intent to commit a crime with a direct but ineffectual act towards committing it”.
Although it is theoretically possible to be charged with this, it is so rare and fact-specific as to be almost non-existent.
As Orange County DUI Lawyers, we always look very closely at the probable cause for any DUI stop.

Defenses to a DUI arrest for sleeping in the car

One DUI defense that may work in negotiating the DUI with the prosecutor, or at a  jury trial, is that the driver had a rising blood alcohol level defense – that is that they consumed alcohol before the police showed up and tested the breath or blood, and were not impaired or above a .08% at the actual time of driving.
The prosecution’s expert witness usually will point to the scientific literature that shows that absorption to a peak alcohol level takes place anywhere from 20 minutes to 90 minutes (mainly depending on whether you had food in your stomach), after which you start falling.
It makes it a much stronger case if a witness states that the driver purchased alcohol and that they saw you drink it.  Or if there was an admission that the driver had consumed alcohol after stopping the car, and there were the empty beer cans to prove it around the vehicle.  However, in most cases, the majority of facts are against the driver, even as a circumstantial case.
It’s easy to focus on the alcohol in sleeping in the car cases, but we also have to show that any narcotics or prescription drugs were not consumed while driving, if the case is a Driving Under the Influence of Drugs (DUID) case.
Since the law is written so that it’s illegal to drive with any prohibited substances in a driver’s bloodstream (even if legal), and if found to be driving under the influence of drugs, you are presumed to be driving under the influence (under the same/similar statute as alcohol).
That’s a rebuttable presumption, and as Orange County DUI Defense Attorneys, we can present expert testimony that a driver was not impaired.
For most drivers, that leaves them with two remaining options if they cannot challenge the stop in the first place:
  • Challenging the blood or breath testing; or
  • Impressing upon the DA any mitigation evidence – that is, any special licenses and other accomplishments, character reference letters, rehabilitation, charity work, or school work, and trying to negotiate something lower just based upon that.
With the right jury and expert testimony that is clear, a driver would have a stronger case.  Or with the right jury and the right expert testimony, and the help of an Orange County DUI Lawyer, the jury might end up hung, or could provide you with a not guilty verdict.
Being in a parked vehicle may or may not be grounds for law enforcement to investigate you for DUI or any other alleged offense. As with many stops and detentions by police, it depends on the facts and circumstances of each case.

Can you get a DUI for sleeping in your car if you’re in the back seat, or if your keys are in the trunk or back seat?

Considering all the facts of the case, it’s better to be in the back seat, and it’s better to have the keys somewhere away from you. If you have the engine off, that makes the case more difficult to prove for the officers to prove you were driving at some point.
If you get in the back seat and the police officer can’t find the keys to the car, how do they know that you were driving or someone else wasn’t driving and left it? There are a number of possibilities, as long as you have invoked your right to remain silent and do not confess or admit to anything the police have to prove. It’s best for the keys to be nowhere and for you not to be in the driver’s seat, but even that doesn’t always prevent you from being arrested for DUI.

So can you get a DUI for sleeping in your car?

Yes.  Since California law makes that easier for officers to arrest for, your best move is to take a cab or a ride-sharing service like Uber, or Lyft home if you are too drunk to drive. Or, have a designated, non-drinking driver take you home.

Contact Us if you were arrested for DUI.

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Contact us today. If you have been charged with a DUI, contact our Orange County DUI Attorneys for representation. We provide legal advice and representation to people with cases in Orange County who have been charged with DUI. We can help try to get the charge asserted against you reduced or completely dismissed.