Question for Attorney Carbone: I Was Arrested for DUI Though I Wasn’t Driving. Is That Legal?

Posted July 31st, 2017 by .

Categories: Criminal Defense.

DUI in a parked car law offices of anthony carboneQuestion: After a few drinks, I decided to sit in my car for a while and sober up before driving home. I was taking a nap when I heard a tap on the window. It was a police officer who told me to get out of the car. He smelt alcohol on my breath and after taking a breathalyzer, he arrested me for DUI. But I wasn’t even driving, just sitting in my car. Can the police do that? Is that illegal?

Answer: When we think of drunk driving, you probably think of someone driving a car after having a few too many. But what if you aren’t driving? Is it possible to get a DUI? Yes, it is. Here’s why.

According to the state law, in order for law enforcement to charge you with drunk driving, the police need to observe that the defendant was operating a vehicle at that time. But there have been cases when no driving was observed. For example, in the case State v. Daly, 64 N.J. 122 (1973), the officer found the defendant reclining in the driver’s seat of his car in the parking lot of a local tavern. The defendant had testified that he was sleeping off the intoxication and planned to drive home eventually. However, since the car was running at the time (he was trying to keep warm), the court ruled that the engine proved the car was in operation. This meant there was evidence of “intent to drive or move the vehicle” at that time.

In your case, however, you may be able to fight the case. It depends on the following factors:

  • Was the engine off and keys out of the ignition?
  • Were you parked in a parking lot or in a designated parking spot?
  • Did you admit to the police officer that you had been drinking and intended to drive in the future?
  • Was there any alcohol in the car?
  • Were you in the driver’s seat or in the passenger’s or back seat?

The answer to these questions can help you fight your DUI.

You should also hire an experienced DUI attorney to help you with your case. We’re here to help. Contact the Law Offices of Anthony Carbone today for a free consultation.

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