When a person leaves a venue too inebriated to operate a vehicle, a common
alternative is to sleep in their car in order to sober up. But if a police
officer happens upon a sleeping motorist, the question becomes whether
they can be arrested for a California
Although some states hold that an individual can be arrested, charged,
and convicted of a DUI if they are in “dominion and control”
of their vehicle—meaning they have the ability to drive it—even
if may not have actually driven it, California is not one of those states.
This means that state prosecutors must prove that the person actually
drove their vehicle.
Mercer v. DMV
In 1991, the California Supreme Court in the case of Mercer v. Department
of Motor Vehicles held that the word “drive” in California’s
means that the defendant volitionally and voluntarily moved the car. The
court has held that even the slightest movement is enough to fulfill the
requirement that the defendant drove the vehicle as long as it was voluntary.
Furthermore, the court pointed out that the phrase “actual physical
control” does not appear anywhere in the drunk driving offense statutes.
Since “driver” is defined as one who drives or is in actual
physical control, the two terms (drive vs. actual physical control) need
to have different meanings. In the end, the court ruled that mere actual
physical control is not enough to constitute driving. Hence, the term
“drive” requires volitional movement of the vehicle—at
least for the purpose of DUI statutes.
If a person is discovered to be asleep in their vehicle, it is likely that
a police officer did not see the individual drive. Therefore, there may
not be any direct evidence for a prosecutor to prove that a person drove
However, a prosecutor can use circumstantial evidence to prove that the
person drove to where they were found while under the influence and then
Circumstantial evidence that may prove you were driving include:
- An engine or hood that is still warm
- Tires that are still warm
- Your keys were in the ignition
- Your vehicle’s gear is in drive
- A car in any part of the roadway, such as being slightly over the shoulder line
- A vehicle damaged and next to the scene of an accident
Will I Walk Away Without Being Arrested?
If direct and circumstantial evidence does not exist, it would be difficult
for the prosecution to prove that the defendant drove the vehicle while
being under the influence. However, the person may still be charged with
another criminal offense, such as drunk in public.
In conclusion, no individual should be in their own vehicle whether they’ve
driven it or not. The best alternative is to request a ride from a ridesharing
app or have a designated driver pick you up.
If you have been arrested for DUI in Ventura County, CA, request a
free consultation with our experienced legal team at
The Law Offices of Jarrod M. Wilfert today