Many people are under the mistaken belief that a person can be arrested, charged, and convicted of a California DUI for sleeping in a vehicle while drunk without actually haven driven the vehicle. While this is the case in other, what are called, “dominion and control” states, California law requires that the person actually drive a vehicle.
All crimes, including DUI, have “elements.” Elements are facts that must be present for the person to be convicted of that crime. In California, driving a vehicle is an element to the crime of DUI.
In 1991, the California Supreme Court in the case of Mercer v. Department of Motor Vehicles held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. The court has held that even a “slight movement” is enough to meet the element of driving.
So does the officer actually have to witness a slight movement of the vehicle to arrest a person for a California DUI? Unfortunately, no.
Through circumstantial evidence, a prosecutor can prove that person drove their vehicle without the officer actually witnessing the vehicle moving.
This is typically done when the officers find the vehicle at or close to the scene of an accident or when the officers find the vehicle in the middle of the road. Under either of these circumstances, often is the case that the driver is asleep in the vehicle and the officer does not actually see any movement of the vehicle.
If, however, the officers find a person asleep in a vehicle while under the influence and there are no other facts that would indicate that the driver recently drove the vehicle, the person cannot be arrested, charged, or convicted of a California DUI. An example of this would be when an officer finds an intoxicate person asleep in a vehicle that is parked in a driveway or parking lot. The office can, however, arrest the person for being drunk in public.
As I mentioned earlier, California is different than dominion and control states. In a dominion and control state, if a person is found asleep in a vehicle and they have dominion and control of the vehicle with the ability to drive, they can be arrested for a DUI in that state.