Can I be arrested for DUI if I am not driving?
The answer is a resounding, ‘yes.’ You can be arrested for DUI even if you are not driving. Initially, that may sound counterintuitive but the fact of the matter is that the State can prove a DUI either by showing that the person was either 1). Driving, OR 2). in Actual Physical Control of a vehicle.
Being in actual physical control of a vehicle means you are physically in or on the vehicle and have the ability to drive or move the vehicle, regardless of whether you are actually operating the vehicle at the time. For more information about what must be proven by the prosecutor in a DUI case, be sure to download my NO-COST consumer guide: It’s Not Just a Traffic Ticket: A Six-Pack of Questions that Can Cause a Hangover After a DUI Arrest.
In fact, a lot of DUI arrests occur because the accused was doing the right thing by not driving, but rather deciding to “sleep it off” outside of the establishment in which they consumed alcohol. It also may not matter whether you were in the driver’s seat, passenger side, backseat or anywhere else in the passenger compartment of your car. In addition, where the keys are may not make all that much of a difference either.
There are many legal issues when a DUI investigation and arrest starts with actual physical control rather than an actual driving pattern observed by the police officer. An experienced DUI defense lawyer will be able to analyze the facts surrounding your case to determine what defenses can be raised and what motions may be filed.
Depending on where you were found sleeping behind the wheel, it may have been improper for police to approach your vehicle in the first place. For example, when someone is legally parked and there is insufficient evidence of an emergency it may be improper for police to approach your vehicle in an attempt to make contact with you in the first place as it is not evident that criminal activity was taking place and no driving patter was observed as the car was parked.