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DUI / DWI when not driving

San Rafael, CA |

I was charged with a DWI last night while I was sleeping in my car. I was not driving and the keys were on the floor. Can I get a DUI / DWI for this?

Additionally, I was drunk, but that is why I was not driving.

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Attorney answers 5


Can you get a DUI for that? Depends on how good your attorney is. And what you told the cops about just how it was that you got into that position. Did you make any admissions to the police that you had been drinking? Did you admit to driving the car? So many questions. A review of the police report would be most helpful. Bottom line, yes, you can get a DUI if you said all the wrong things to the cops. Again, the need to hire an aggressive attorney to fight your case.


You should absolutely fight your case - pulling over and sleeping it off is exactly what the public expects you to do if you are beyond the blood alcohol limit or under the influence. Good for you for not driving - now for court - FIGHT FIGHT FIGHT. Marin County can be very tough - get a lawyer who understands this perverse county. This county has some of the worse jurors in the State of California.

Good luck on your case,
Joshua M. Dale, Esq.


In Washington, you are likely to be charged with Being in Actual Physical Control of a motor vehicle while under the influence. I know it seems you were doing the right thing by sleeping it off and there are affirmative defenses to this charge, but it is very likely the government would charge you with this crime. The government would have to establish that you could have made the vehicle readily operable, and of course, it appears you would have a defense as your keys were on the floor; however, the location of the keys is not necessarily determinative in establishing guilt.

The legislature has made it clear in Washington that you cannot be convicted of the crime of Being in Actual Physical Control if you are safely off the roadway, however, it is up to a jury to decide what "safely off the roadway" is and the government will never concede that any car is safely off the roadway. I have even had cases where persons are sleeping in their cars in parked cars in parking stalls at a hotel and the government files the charge, so be ready for a fight. This is why you need an experienced attorney to help you out with a DUI charge.


All good answers. Get a great lawyer and fight. Get one that specializes in DUI defense as their primary or only area of practice.

As for Washington, California's laws and case law differ significantly. The prosecutors must show not only control, but volitional movement.

This is one to fight.

Richard Middlebrook


Sounds like a case worth fighting- Hire a lawyer!

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