Rencher Law Group, P.C.
Areas of Practice

Rencher Law Group, P.C.
1438 Market Street
Dolan Building - 1st Floor
San Francisco, CA 94102
Phone: (415) 877-4486




Rencher Law Group, P.C., Attorneys, San Francisco, CA

Parked Car DUI


California Vehicle Code section 23152 states: “(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” This statute mentions nothing about receiving a DUI charge while being intoxicated in a parked car. However, a person can be charged with a parked car DUI.

Driving-In-Fact

The first argument a prosecutor can make centers on the definition of "driving” – that the accused person was actually driving the car while intoxicated. For example, if the engine was on, the parking brake released, and the intoxicated person behind the wheel, then all of this taken together could constitute "driving." Certainly "driving" could constitute these facts plus the gear being in "drive" while the intoxicated person depressed the brakes with her foot, even if the police officer did not witness the car move.

Attempted DUI

The next argument is that the police officer at the scene could reasonably infer that the person had the intention to drive, was getting ready to drive, or would have driven if not for police intervention, that is: "attempted DUI." Although not specifically mentioned in statute, California courts have affirmed this charge. Evidence supporting attempted DUI would include: exiting a drinking establishment alone, putting belongings in the passenger seat, sitting in the drivers' seat, turning the ignition, and acting decisively as an automaton about to drive home.

Immediately Preceding DUI

The next argument for the prosecution would be that the DUI already occurred, despite the engine being turned off and car parked. For example, if the tires and engine were warm, the car was parked in a remote area on the side of the highway, there was no evidence of alcohol containers in the car or other passengers, and the driver exhibited intoxication through field sobriety tests, then it can be inferred that the driver had driven while drunk, even though the police did not witness the driving. A defense to this would be that the actual driver left the scene after parking. The point is that circumstantial evidence can help prove an immediately preceding DUI, even if the accused person is asleep in the back seat.

Drinking While in the Car

A common defense that accused DUI candidates make is that they parked the car, and only then began drinking while in the stopped car. However, several sections of the Vehicle Code proscribe the following: driver or passengers drinking alcohol while in a car, possession of an open container in a car, incorrect storage of an open container in a car, and underage possession of alcohol in a car. Therefore, the defense of drinking in a car only after parking the car may be an admission of other chargeable offenses.

In Summary

In order to avoid a parked car DUI, an intoxicated person needs to be aware of important circumstantial evidence such as: proximity to drivers' seat, possession of open containers, possession of keys, whether the engine is running, and so on. The best idea may be to place the keys in the trunk or under a floor mat, and curl up in the back seat. Better yet, obtain the services of a friendly designated driver – the presence of a designated driver is an almost bulletproof defense to a parked car DUI.

RLG attorneys are experienced in all aspects of DUI law. If you have been arrested for DUI, a criminal defense attorney at RLG will fight to protect your rights. We serve the entire Bay Area.

For outstanding legal representation, please contact RLG for a free consultation: (415) 877-4486







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