Can I Sober Up In My Car To Avoid A DUI?

Jul 1, 2014 @ 03:48 PM — by Myles L. Berman

In California, when hearing the phrase “driving under the influence”, people assume that they have to be pulled over while “driving” before they can be arrested for a DUI. To roughly summarize the law in California, driving requires the volitional moving of a vehicle. The vehicle does not need to change location or travel great distances – it just needs to move. This includes when, for instance, a person starts a car, puts it in gear, pushes the gas and the car moves only a foot. Yes, that’s enough.

What surprises most is that the law does not require that a police officer witness or observe the driving. The state does not require “direct evidence” of driving; Circumstantial evidence is different than direct evidence in that it is based upon an inference made from facts in existence at the time an event occurred. The difference between these two evidence categories is often explained like this: if you look out your window during the night and watch snow falling you have direct evidence that it snowed overnight. On the other hand, if you went to bed at night and there was no snow on the ground but there is snow on the ground the next morning, then by circumstantial evidence you have deduced that it snowed overnight.

So, how does this apply to a DUI? Well, police officers use circumstantial evidence to determine whether someone has been driving. For example, Chad is driving his car down the 101 freeway and decides to pull over to sleep off the four Sake bombs he drank at the sushi bar. Chad remembers a buddy telling him that if he leaves the car keys outside of his car to show he was not driving, then he will avoid a DUI arrest. Chad places his keys in the tailpipe and sleeps in the backseat of the car. An hour later, a CHP officer sees Chad’s car parked on the freeway berm. The CHP officer asks Chad how he arrived at the location and Chad replies that while driving he realized that he needed to pull over until he sobered up. Can Chad be arrested for a DUI? Yes. The officer notes that Chad is alone in his car (no other potential driver), Chad admitted to driving, and the car is located in an area that can only be reached by driving. So, the officer uses direct evidence from an admission and circumstantial evidence to arrest Chad for a DUI.

What if instead, Chad exits the Sake bar and realized that he has had too much to drink? His car is parked in a parking lot, which provides parking for four bars in addition to the Sake bar. Chad calls his mom, brother, sister, and girlfriend to give him a ride home. No one answers his call. So Chad gets in the car, turns on the ignition to warm the car and play the radio. He turns off the ignition, but leaves the battery on to listen to the radio while he sleeps in the back seat. A half hour later, a police officer comes to Chad’s car and observes that the engine is warm to the touch, the radio is playing, and the keys are in the ignition.  Chad did not admit to driving. Can Chad be arrested for DUI? Unfortunately, yes.  A car hood remains warm for a short period of time after driving. Plus there was power going through the car. The officer decides that this is enough circumstantial evidence to arrest Chad.

Now, you may argue that circumstantial evidence should show that he was not driving because Chad was in the back seat of his car, the engine was not running and the car was parked in a parking lot in walking distance from five drinking establishments. Although this argument is correct, it may not avoid a DUI arrest.  Recall that at the beginning of today’s blog we discussed direct evidence and circumstantial evidence to determine whether an event occurred. Specifically, I discussed using evidence to determine whether it snowed overnight. Usually when it comes to making an arrest, the analysis is limited to trying to determine whether there is sufficient to determine if an event occurred. Once it has been established that there is such evidence, the arrest is made. It is the attorney’s responsibility to later show otherwise.

In closing, a lot of information was covered in today’s entry. I hope the reader understands that there are many people in California who, like Chad, choose to do the right thing and not drive once they determine that they are not safe to drive. However, doing the right thing does not always prevent a DUI arrest.  Remember, just because one is arrested for DUI doesn’t mean he or she is guilty or will be convicted of DUI.

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