Menu 
Law Firm of Aaron Bortel

Can An Officer Arrest Someone For DUI If They Are In Their Car While Intoxicated?


In order for someone to be arrested for DUI, the officer needs probable cause. This is usually met by determining that he doesn’t need to have proof beyond a reasonable doubt; this is a burden in court that the prosecution has to be able to meet. So just arresting someone is not a great burden, but it requires the officer to have evidence that the person was driving and that when they were driving, or I should say driving a motorized vehicle, they were either impaired or at or over a 0.08 blood alcohol level at the time.

In order to meet those elements, obviously, the first one is driving, and to meet that, if the officer has not seen that person driving, for example, if he sees a car on the side of the road or highway and talks to that person, it then becomes the officer’s assumption based on evidence that the officer gathers, whether or not to arrest someone for DUI. So typically, what they have is circumstantial evidence of driving because they did not see the person actually driving.

This circumstantial evidence can involve numerous phases of evidence. You can have the person sitting in the driver’s seat, which is adjusted for that person. You can have the keys in the ignition with the person in the driver’s seat, or the keys are in that person’s pocket. An admission of driving is probably the one that actually hurts the most. There are a number of other ways that the officer determines that the arrested individual was the driver besides admitting to driving, such as ownership of the vehicle itself.

Other things that are best unsaid can be used as circumstantial evidence of driving. A lot of times, people will say, “Yes, someone else drove, and they went for gas and got picked up,” or the driver is someone they met at a party or a bar, then the car broke down, or they were both tired, and the owner of the car decided to stay with their car while the other person got a ride from someone else. So, the officers look at everything that’s going on and write a report, making it look like the person they arrested was the driver.

Then, we have the field sobriety tests, which involve observations by the officer if the person seems intoxicated or has the symptoms of intoxication, including slurred speech, red watery eyes and/or the odor of alcohol. They will ask the suspect when they last drank, how much they had and will require field sobriety tests that involve walking on a line, counting their fingers with head back and eyes closed, estimating 30 seconds and standing on one leg. Many, many tests can be given to someone to determine whether they might be at or over the limit of being too impaired to drive.

Of course, there is a chemical test after the field sobriety tests; the person may choose to do this optional chemical test, which is called a preliminary alcohol screening test. This involves blowing into a device once or twice, and the officer would then get a reading; if they are at or over 0.08, they will almost always be arrested. So those are the criteria that the officer needs. A lot of times, they don’t have everything, or it’s very weak, and they’ll arrest anyway and just let the District Attorney’s office figure out whether or not to actually file charges.

Unfortunately, when the DA’s office does not file charges, it’s great for the client, but the client’s already been arrested by an officer who didn’t have sufficient cause, and the client has already spent a lot of money on hiring a lawyer and going through the motions. But in the end, the client wants to win the case, and that’s one way to do so when the District Attorney does not believe that the officer had sufficient cause to arrest someone for DUI when they’re sleeping in their car.

Does The Type Of Road Where Somebody Is Parked Have Any Relevance In A DUI Scenario?

Unfortunately, even private property is considered a place where you can get a DUI. So, you’re more likely to get arrested for sleeping in your car when you are on the side of a highway because the California Highway Patrol is usually out there, and that’s where the CHP is likely to see you, at which point they will stop and do a welfare check on any vehicle that’s on the side of the road. Legally parked on a side street, you are a lot less likely to be seen; but if they do come around and want to check you out, they get to do the same thing even though they haven’t seen you driving. If they think they have enough evidence to prove that you had been driving, then they are going to arrest you for DUI.

For more information on Getting Arrested On A DUI Charge, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

Aaron Bortel

Get your questions answered - Call Us 24/7 For a FREE Case Evaluation (415) 523-7878.

Related Articles