Arrested For DUI While Asleep In Your Car


Have you ever heard this one: A guy in Any City California drank too much and decided to sleep it off in his car. He was snoozing in the driver’s seat with the keys in the ignition but the car was not running. Police spotted him, tapped on his window and woke him. Upon investigation, they arrested him for drunk driving because he tested above the legal blood alcohol threshold.

This is a common “urban legend” …well sort of. In fact, in California a person is not driving under the influence if the person is not driving. Makes sense. Under California case law, the word “drive” as it applies to the DUI laws means that a person by his or her own conscious efforts causes the vehicle to move. However, if there were any witnesses that reported the sleeping driver drove to his resting spot or if there is other evidence that the driver had been driving, even though he is not driving now, he can still be arrested.

Let’s say we have the same scenario but the cops feel the hood of the car and it is warm indicating that the car was recently driven. Our drunk fellow in the driver’s seat may or may not have been the one who last drove the car, but the circumstantial evidence will be enough to sustain an arrest and quite possibly his conviction. Even if he was, for example, found sleeping it off in the back seat, but it was his car and the hood was still warm, there’s a good chance he’s going to be arrested. The operative term is “reasonable suspicion.” If the cop has reasonable suspicion to believe the driver was driving under the influence, it is enough to arrest the driver, even when he was found snoozing it off.

But the California courts have also found in several cases that a drunk driver who was asleep at the wheel, even with the engine running, but with no evidence that the driver caused the vehicle to move, was not driving under the influence. These cases are many years old now and given the heightened sensitivity to drunk driving not likely to protect someone found in similar circumstances today for a DUI conviction.

Ultimately, the court will look at the “totality of the circumstances” in order to determine whether the evidence establishes that the driver had been driving prior to falling asleep. Even if the court lets the driver off the hook, the DMV in its separate Admin Per Se hearing may not be so willing to agree and the DMV is not constrained by the court’s decision.

William Weinberg has extensive experience defending those who have been charged with driving under the influence. Please feel free to contact him to set up a confidential consultation without charge at or by phone at (949) 474-8008.

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