Charged with DUI and You Weren't Even Driving

Posted by Shawn B. Hamp | Aug 16, 2017 | 0 Comments

You go out for a few drinks. You drink a little too much. There was no intention to get drunk, so initially there was no reason to plan for a safe way home. You think: maybe I'm fine. You go out to your car, you get in, and then you put the key in the ignition, at which time so many thoughts swarm your brain and images you rather not recollect scare you enough to realize that you are not capable of driving. That's ok, right? You'll just sleep in your car. You turn the AC on, recline the seat, and close your eyes.

The next thing you know: someone is pounding a fist on your window and shining a bright light in your face. You try to figure out what's happening in your dazed state, but the person outside the window is relentless. You roll down the window just enough to see who it is and just enough for him to smell you and the inside of the car. Before you know it, your rights are being read and you are off to jail.

AZ DUI Parked Car Law

There is no law in Arizona specific to DUI and parked cars, but there is the concept "actual physical control" pertinent to DUI law. Even if your blood alcohol content level is at or above the legal limit 0.08, you cannot be charged and convicted of DUI if you had no actual physical control of the vehicle. Actual physical control of a vehicle is determined according to the totality of the circumstances.

Factors that determine actual physical control of the vehicle are:

  • Location of the vehicle;
  • Reason you were stopped; and
  • Engine status, was it off or on.

Avoid a Parked Car DUI

First and foremost, if you are going out to drink a little, always have a safe plan to get home, whether it's a designated driver or Uber driver. If the latter simply isn't an available option, and sleeping in the car is a possible option, then proceed to the following:

  1. Before drinking:
    1. Make sure you are parked in a well-lit area.
    2. Make sure you are parked completely off the road or in a public parking lot.
  2. After drinking:
    1. Do not fool yourself. If you have to even ask the question if you are or are not able to drive, then it is safe to say you should not drive.
    2. Lock all doors and roll up windows (unless warm leave cracked just enough for air to get in but nothing else).
    3. Keys out of the ignition. If the keys are in the ignition, then it could be said you were intending to drive (or possibly already were driving) while under the influence.
    4. Sleep on the backseat. Don't sleep on the driver seat; it can be alleged you were intending to drive or were in physical control of the vehicle.
    5. If a police officer bangs on the window, give a thumbs up and show your registration and driver's license through the window (so that you remain within your legal rights and the officer can't smell alcohol on your person).

These DUI cases are few in comparison, but they happen more than what you might expect. If you are in your car, even if it's not moving, but your BAC is above the legal limit, then you can be arrested. A good defense proving you were not in actual physical control will be your next best option.

About the Author

Shawn B. Hamp

President and lead counsel for The Hamp Law Offices, LLC (An Arizona Professional Corporation), Shawn Hamp has practiced law for more than 15 years with an emphasis in criminal law. An experienced trial attorney, Mr. Hamp has been lead counsel in hundreds of criminal trials and court...


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