Can you get a DUI for sleeping in your car?


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Tag Archives: sleeping

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.

Contact Our Firm
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.