Imagine the following scenario: A person drives to a bar only expecting to have a couple of drinks, certainly not enough to keep them from being able to drive home. Lo and behold, the person has more than expected and, instead of driving home, they decide to sober up by sleeping it off in the car. While the person is asleep in their vehicle, a police officer walks by and notices the person in their vehicle.
Can the officer arrest the person for a DUI when they were attempting to sober up in their car, but not actually driving?
As a preliminary matter, the police officer would have to have probable cause (reasonable and trustworthy facts that the person was driving under the influence) before the officer could investigate them for a DUI. Let’s assume for discussion purposes that the officer had probable cause to investigate for a DUI.
Whether the officer could arrest the person for a DUI for merely sobering up in a vehicle depends on the state where the incident occurred.
Some states hold that a person can be arrested, charged, and convicted of a DUI if they are in “dominion and control” of their vehicle with the ability to drive it, even though they may not have actually driven it.
California, on the other hand, requires at least some proof that the person actually drove the vehicle.
In the 1991 California Supreme Court case of Mercer v. Department of Motor Vehicles, the court held that the word “drive” in California’s DUI law means a person must volitionally and voluntarily move the vehicle. The court has held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle as long as it was voluntary.
Having said that, just because an officer doesn’t see someone drive, as is the case with many DUI arrests, doesn’t mean that the person can’t be arrested for a DUI or something else.
Just because the officer did not see an intoxicated person drive a vehicle doesn’t mean that they didn’t actually drive the vehicle, and if the officer can obtain circumstantial evidence that a person drove, then that might be enough to support the “driving” requirement for a DUI arrest and conviction.
For example, an intoxicated person is found asleep in their vehicle which is in the middle of the road or an unconscious and intoxicated person in their vehicle after crashing it, can still be arrested for a DUI. The vast majority of these types of cases, the officer does not observe the person drive and then stop in the middle of the road. That, however, is not necessary. The prosecutor only needs to introduce facts that can create the inference that the intoxicated person drove without directly proving that the intoxicated person drove.
In other words, if the prosecutor introduces the fact that the person was found intoxicated in the middle of the road, the prosecutor can argue that the person would not have come to the middle of the road had they not driven there. The same thing can be said for someone who is unconscious at the steering wheel of a vehicle involved in an accident.
What about when there is no circumstantial evidence to suggest that the person drove?
In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence, the officers still arrested the defendant for drunk in public.
The Court concluded that, in order to prevent the defendant from waking up and driving away drunk, they needed to arrest him on suspicion of being drunk in public.
Although California requires that a person actually drive a vehicle before they can be convicted of a DUI, no person should be in a vehicle, whether they’re driving it or not, if they are intoxicated. Why risk a California DUI, or some other charge like drunk in public?