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.

• 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.”

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

“We do not hold that observed movement of a vehicle is necessary to support a conviction of drunk driving under 23152.”

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).

Although it is theoretically possible to be charged with this, it is so rare and fact-specific as to be almost non-existent.

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:

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.

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.