California Vehicle Code section 23152 states: “(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” This statute mentions nothing about receiving a DUI charge while being intoxicated in a parked car. However, a person can be charged with a parked car DUI.
Despite DUI being an acronym for “driving under the influence,” many people think you can get charged with DUI in California even if you weren’t driving. However, although other states have such laws, California does not. California prosecutors must prove the person actually was driving the vehicle under the influence.
California Vehicle Code section 23152 (a) and (b) states, “It is unlawful for a person who is under the influence of any alcoholic beverage or who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”
In a 1991 case (Mercer v. Department of Motor Vehicles), the California Supreme Court ruled the word “drive” mandated evidence of the person’s willful movement of the vehicle. This ruling reinforced years upon years of case law on the issue.
In a 1985 case (People v. Wilson), the court ruled the vehicle’s “slight movement” when the police officer was present was a determining factor when deciding whether the person was driving.
However, the court’s ruling also said in the absence of clear evidence of driving, that still could be determined at trial by way of circumstantial evidence. In other words, the prosecutor has to prove the driver caused the vehicle to move slightly. If the officer didn’t see such movement, the prosecutor must resort to circumstantial evidence.
Such evidence includes, but isn’t limited to, discovering the vehicle in the middle of the roadway or at (or close to) the scene of a motor vehicle accident. DUI law in California differs from that in many other states that require only “dominion and control” over a motor vehicle. Those states’ laws require only “dominion and control” over a motor vehicle with “the potential to drive it.”
So the short answer to the initial question is it depends if the prosecutor can show the person found in the vehicle actually drove it.
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