If you are drunk and in your car with your keys, it is NOT a DUI. If you need to take a nap to sober up, you can do it in your car, just make sure you are parked legally!
The vehicle code defines a DUI as, “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. (b) It is unlawful for a person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” (Vehicle Code 23152(a))
In order to be considering “driving” a vehicle, some volitional movement must occur and must be witnessed by an officer pulling you over. This was defined in
Mercer v. Dept. of Motor Vehicles (1991), 53 Cal. 3d 753. Mercer was a man who was arrested for DUI and had his license suspended. His license was suspended because he refused to submit to a chemical test when he was pulled over for a suspected DUI when he was found passed out in his running car by an officer. The court found Mercer was not lawfully arrested and thus not required to give a chemical test. While Mercer was found passed out slumped over his steering wheel, seat belt fastened, car lights on, and the engine running, he could not be lawfully arrested for a DUI because his car was lawfully parked and he was not driving it. The Court found the word “drive” used in Vehicle Code 23152 requires proof of volitional movement of a vehicle. P768.
There is an exception to this rule. The key to Mercer getting off the hook is that he was legally parked. There is an exception to the lawfully arrested portion of the implied consent law. The exception is that an officer does not have to have probable cause to arrest you and make you submit to chemical testing if you are involved in a car accident or you are obstructing a roadway.
VC 40300.5 Allows Officers to arrest you without a warrant when they suspect you are under the influence and the following exists:
- you are in an accident
- you are in or about a vehicle that is obstructing a roadway
- the person will not be apprehended unless immediately arrested
- the person is going to cause injury to himself/herself or damage property unless immediately arrested
- the person may destroy or conceal evidence of the crime unless immediately arrested.
So if you are drunk and you need to drive somewhere, get into your car and sleep it off, just make sure you are parked legally!