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
- 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:
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.”
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.
Do the police have the right to investigate you if you are sleeping in your car?
Defenses to a DUI arrest for sleeping in the car
- 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.