Written by Avvo Staff

Can you get a DUI when you're not driving? Parked-car DUIs, explained.

The most common way that you can get charged for a DUI is by driving a car while intoxicated. But what if you've had a bit too much to drink, get in your car, and then decide to take a nap instead? Can you get charged with DUI, even if the car wasn't in motion, or even turned on?

Here we look at various state DUI laws as they pertain to parked and turned-off cars.

How do state laws affect the possibility of receiving a DUI in a parked car?

While all states have statutes that prohibit the operation of a motor vehicle while intoxicated, state laws vary widely when it comes to parked cars. Some states have specifically worded statutes that address intoxicated persons sitting at the wheel of a parked vehicle, while others rely on relevant case law to determine guilt in those cases.

In New Jersey, for example, the state has a wide berth when determining whether a defendant can be charged with DUI if found intoxicated while at the wheel of a parked car. The prosecution only needs to prove that the defendant either operated a motor vehicle at some prior time while intoxicated or that the defendant intended to drive the vehicle while in a state of intoxication. A judge or jury can use the specific circumstances of each case to decide whether or not to convict someone of DUI.

What are the common methods used to determine whether or not to charge someone with a DUI if they were in a parked car?

Because so much of a prosecutor’s DUI argument depends on the circumstances surrounding the incident, it is important to understand the methods that a court may use to determine whether or not to charge someone with DUI.

  • Driving-in-fact. This argument pertains to whether or not someone was “operating” the vehicle at the time of his or her arrest. A court will consider whether the car was turned on, the parking brake was off, the car was in gear, and other similar factors. Taken together, these factors can determine whether someone is found guilty or acquitted.

  • Attempted DUI. This means that a person was attempting to drive intoxicated, even if the car was not currently in motion when the police officer arrived. California, for example, does not have a statute specifically relating to “attempted DUI” but has still convicted people of the charge. The court takes into account whether or not it appears that the person intended to drive while drunk. Actions such as exiting a bar alone, turning on the ignition, or putting personal belongings in the passenger seat can be used against a person in court.

  • Circumstantial Evidence of DUI. The court can also consider whether or not there are particular signs of a car being driven prior to police finding an intoxicated driver in a parked car. A warm engine, tires, or a defendant’s admission that he or she drove drunk can all be used to convict of DUI.

How can a person avoid being charged with DUI in a parked car?

If you do find yourself in a situation where you think it’s better to sleep off a few beers rather than drive, it’s helpful to remember a few tips:

  • First, make sure you turn off the car and take the keys out of the ignition. Don’t turn it back on (or even to the Accessory function).

  • Don’t park on the side of a busy road. Find a parking lot or a side road where parking is permissible.

  • Get out of the driver’s seat to take a sobering nap. The back seat is preferable, but even the passenger seat is better than falling asleep while in the driver’s seat.

  • If questioned by police, do not admit to any intent to drive in the near future.

It is always best to find a sober driver or call a cab after a night of drinking. However, if you do decide to take a nap in your car be sure that the keys are not anywhere near the ignition, and that it is clear that you have chosen not to drive that night.

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