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If you live in California, it is technically possible to be arrested and even convicted for driving under the influence, even if your car was parked. One of the conditions that can allow this is for the driver to allow the vehicle to move any amount, even if that movement only amounts to 2 or 3 inches overall. Many people have probably experienced putting their car in park and having it roll a few inches before stopping, if you’ve been drinking, that can be all it takes.

If the individual had been drinking and put their vehicle in neutral or park, even setting the parking brake, and the vehicle rolled a couple of inches before coming to a full rest, they may be arrested for DUI which can carry some very significant penalties. These penalties can include hefty fines, vehicle modifications, rehabilitative programs as ordered by the judge, and more.

If Someone is in a Parked Car is There Probable Cause?

This will depend greatly on the circumstances surrounding the initial arrest and the conditions encountered by the officer at the scene and the driver. In most cases where there is no obvious threat of imminent danger, a law enforcement officer will need to show that there was probable cause for initially confronting the driver. Probable cause is the legal standard that police officers must meet in order to make an arrest. 

Law enforcement generally cannot arrest someone unless one of two conditions are met. Either:

  1. The law enforcement officer has probable cause that the driver has committed a crime


  1. The law enforcement officer has probable cause that the driver is about to commit a crime

There is an exception that will allow a brief detainment provided the officer has a reasonable suspicion that the driver has committed a crime. This can be more difficult to prove and justify in court, however, and a failure to do so can render the entire case and charges unacceptable.

In many cases, it may be possible to argue that the initial DUI arrest was unlawful because there was no preexisting probable cause of a crime. The alleged DUI driver was merely occupying a seat in a vehicle that remained stationary.

A Hypothetical Situation

An example of this may be an individual leaving a friend’s house and, getting in their vehicle parked in the street, they then realize they are too intoxicated to drive and simply sit in the driver’s seat. An officer on patrol notices someone sitting in a vehicle in the street, and subsequently approaches the vehicle and asks the driver to exit. If the driver exits the vehicle and the officer smells the alcohol on their breath, he then arrests them for DUI.

In this case, the driver’s attorney is likely going to challenge the charges based on the premise that the officer had no initial probable cause to ask the driver to exit the vehicle in the first place. Since there were no reports of rowdy party activity, or other reports of suspicious or criminal acts occurring, there was no justification for the arrest. 

This would have been drastically different, however, if the officer had pulled the same driver over while driving or even pulled the vehicle into the driveway of the friend’s house and noticed erratic driving or other indications of DUI activity. Then the officer would have been able to lawfully detain, field sobriety tests, and even conduct a breathalyzer to justify the arrest and amass evidence for court.

This isn’t an absolute though, and even in court, the prosecution may have attempted to justify the arrest with information or testimony from the officer. Common rebuttals to the “no probable cause, parked car DUI” defense include:

  • Reports of the driver acting drunk before getting in their car
  • Odd or suspicious behavior by the driver, while inside the vehicle
  • A previously reported accident or violation of the traffic code by someone matching the driver’s description or the description of their vehicle.

In The Event Of Arrest Your Attorney May Challenge The Charges

This defense strategy is often used in a wide range of DUI circumstances such as:

  • VEH 23136, underage DUI
  • VEH 23140, underage DUI
  • VEH 23152(a), driving under the influence of alcohol,
  • VEH 23152(b), driving with a BAC of .08% or higher,
  • VEH 23152(f), driving under the influence of drugs,
  • VEH 23153, DUI causing injury,

It is important to remember if you choose not to work with a local defense attorney, that sitting in the driver’s seat, even with the engine running does not count as driving. To legally count as driving, the vehicle must move some measurable amount.

Charges of DUI Can Stick Even When The Car is Technically Parked

Each case is relatively unique, and in some cases, the driver may end up being charged and convicted of a DUI offense even if the vehicle was not even in gear. To have this be successful, the prosecution will need to prove that the defendant voluntarily caused the vehicle’s movement before the arrest and that the movement happened even though the vehicle was not in gear and was in park or neutral.

This means that even 2 or 3 inches of movement can be used as circumstantial evidence in a DUI case, and the vehicle does not need to be in gear or even have the engine running. For example, cutting the engine to the coast or even rolling down a hill out of gear are both considered to be legally driving by California law.

The “voluntarily” part is where an expert legal defense team can begin to build an effective defense. This can often be a lifesaver if the movement was caused by an accident, such as bumping the car into neutral by mistake while sitting in the driver’s seat. 

Penalties in California for DUI Convictions

If you are convicted of a DUI in California the penalties can be severe and life-altering. Initially, you’ll have a fine plus court costs, which can reach thousands of dollars. Following that is a mandatory period of suspended driving privileges, this period can be as short as 6 months, but it can also be as long as several years. In some cases, however, there may be provisions for the defendant to regain some driving abilities back to attend school, work, or other court-ordered activities or programs. 

This will usually require the defendant to go through the process of getting a hardship or restricted license, which will only permit them to drive to specified locations. Some defendants may also be eligible to have an ignition interlock device installed on their vehicle at their expense, which will often reduce their restrictions on driving even more, and will require them to perform a breathalyzer before each time they start their vehicle.

Other probationary terms that are applied to most convictions include attending Alcoholics Anonymous meetings, alcohol education courses known as DUI school, an additional 3-5 years of “summary” probation (which doesn’t require meeting with a probation officer), not driving with any legally detectable amount of alcohol in their system, automatic submission to chemical testing or breathalyzer tests if suspected of drunk driving, and agreeing not to commit any other crimes or violate any other statutes while on probation.

If the defendant must attend Alcoholics Anonymous meetings, they will need to prove their attendance by getting the required paperwork signed and returned to the court. If they are sentenced to DUI school, they must not only pay the required admission but must enroll and complete the school within a specified timeframe. DUI school may be as short as a 12-hour course, or it can go on for nearly 3 years in extreme cases or repeat offenders. 

Sometimes, particularly for first-time offenders or those with skilled attorneys, the judge may approve alternative sentencing instead of jail time. Common options for this include:

  • Attending a Victim Impact Panel, often held by the Mothers Against Drunk Driving (MADD)
  • Cal-Trans roadside work
  • LA County’s Hospital And Morgue (HAM) Program, where the defendant will tour emergency rooms to see the effects of drunk driving and a morgue where they will watch drunk driving victim’s bodies be processed and autopsied

If You Are Facing Charges of DUI Even Though You Were Parked

For those facing charges of DUI even when they were sitting in a parked car, there is a lot at stake. Not only the personal freedom of the defendant, but also their financial security, and even their ability to be autonomous and transport themselves in their vehicle when they need to. All of these factors can compound to drastically change the life of the defendant.

If you or someone you know is being charged with DUI, they must work with an experienced local defense attorney to protect their rights and freedom. The attorney will have intimate knowledge of the California criminal system as well as the laws and standard defenses that can be used to guard against conviction. Even if they cannot prevent conviction, they can help minimize the potential penalties including fines and probationary orders.

The post CAN I GET A DUI WHILE PARKED? appeared first on Law Offices of Taylor and Taylor - DUI Central.

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