Do you have to be driving to be arrested for DUI?

Updated For 2021

You were fast asleep in your car waiting for the alcoholic beverages you consumed earlier to wear off enough for you to drive home safely. Suddenly, you hear someone knocking on your car’s window. When you open your eyes, you find a flashlight shining in your eyes and a police officer asking you to step out of the vehicle.

The officer probably begins questioning you regarding why you are asleep in your car and whether you drank alcohol that evening. He or she then asks you to participate in field sobriety tests and a breath test. The next thing you know, you are on your way to jail on suspicion of DUI.

Wait. You weren’t driving!

Could this scenario really happen? The answer is yes, it could. The answers to the following questions commonly meet the threshold to determine whether you were “driving” your car:

  • Is your vehicle operable?
  • Where are your keys?
  • Where are you in the vehicle?
  • Where is your vehicle located?

As long as your vehicle is mechanically sound, if you are in the driver’s seat with the keys in your pocket on the side of the road, you probably meet the definition of driving.

So, what should I do instead?

If you realize that you shouldn’t be driving and want to avoid a DUI, the following tips may keep you from facing charges and spending the night in jail:

  • Get into the backseat of your car.
  • Put your keys somewhere else in the car where you can’t readily grab them such as the center console or the glove compartment.
  • Stay in the parking lot of the location where you were drinking.

Of course, the best option would be to call a cab, a friend or an Uber driver and don’t even get into your car.

What do I do if I didn’t know this information

If you did attempt to sleep it off in your car and ended up under arrest, all is not lost. You retain the right to challenge the charges. All of the circumstances require examination and careful consideration. The court will not convict you of DUI on a police officer’s word alone. The protection of your rights remains a priority, and the police, the prosecutors and the court must follow the proper procedures before you face criminal penalties.

It may be to your advantage to understand all of your rights and know your legal options before you make another decision regarding the situation.


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The Baker Law Firm, LLC,
Phoenix Criminal Defense and Family Law Attorneys
Call Us For Free Consultation
702 E. Coronado Road
Phoenix, AZ 85006
Phone: 602-842-0359

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