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After Drinking, You Sleep in Your Car: An Example of How You Can Be Arrested for DUI


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A DUI Client

image-4Interviewer: I’m sure people have a lot of questions when something they think is unique or unusual happens to them and they get arrested for a DUI. Here’s some examples, and you tell me what the legality of it is.

Let’s say I’ve had a number of drinks and I don’t want to drive home, it’s cold out, and I want to sleep in my car, to sleep it off. While I’m sleeping, the police come and they knock on the window and the situation escalates, and I end up getting arrested for DUI. How often does that happen? Is it legal for the police to do that, and what can be done to fight a case like that?

If You Are Sleeping Off Alcohol in Your Car, Think Twice: The Police Are Allowed to Perform a Welfare Check

Aaron: Yes. The police can, in most cases, do a welfare check on someone asleep in their car. They want to make sure you’re not injured, hurt, need assistance, and that how they get to knock on your car. They also want to make sure that you haven’t been drinking and driving. In most cases, like I said, they’re allowed to contact you and if they smell the odor of an alcoholic beverage on your breath or think you’re under the influence of drugs, and if they believe you have been driving, they will, almost every time, initiate a DUI investigation.

Volitional Movement: What the Police Are Looking For When They Initiate a DUI Investigation

In California there are certain elements that they need to be able to prove, and the first one is driving. They have to be able to prove there was volitional movement, which means the car has to actually move. Just being in possession of the car, with a key in the ignition, engine running is not movement, that’s not driving. The car has to move. What happens frequently in these cases is first, the police will do is try and get you to say that you have been driving sometime recently. That’s where people get in trouble.

You Should Not Admit to Driving When the Police Question You

The best defense to something like this is that you were not driving, that you got in the car. The problem that we run into is the officers will often claim that you said you were driving or that someone saw you driving, or they’ll say they felt the hood and it was warm. I’ve had officers go as far as using heat sensors to show that the hood and the wheel wells were warm. When they don’t see you driving, the case usually starts out much better.

Interviewer: What about if it gets really cold? Say you’re up in the San Francisco Bay Area, and in wintertime, someone’s got the car running with the heat on and they’re snoozing in the back seat. Are they going to have the same problem as anyone else, or is that any better?

California Police Will Charge You With DUI, Even if You Are Not in the Driver’s Seat

Aaron: It’s better to be in the back seat. If you’ve got the engine on and the heater going, what you have to be careful of is the officers assuming, claiming, or saying that you told them that you were driving, and that’s what they’re going to try and get you to do, no matter what seat you are in at the time.

What happens quite often is people leave a party, a bar, or wherever they were drinking, they pull over, and they go to sleep. If you get in the back seat and they 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. It’s best for the keys to be nowhere and for you not to be in the driver’s seat.

If You Are Charged With a DUI, It Is Best to Retain an Experienced Attorney

I just had a case recently, where my client was in the driver’s seat. The police did not see any driving, and they tried to say that she was the driver. She said she was not driving. They still went after her; they still charged her. Eventually, we got the case dismissed; which was obviously a great result.

They will go after almost anyone who’s in a car who’s been drinking, and that’s one of the reasons why someone who gets this type of a DUI needs to get an experienced DUI attorney in the Bay Area who can handle this type of situation.

By Aaron Bortel

Aaron Bortel

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