Probable cause and parked car DUI refers to a legal defense that a person can use to contest a DUI charge that he/she received while in a parked car. The defense asserts that, in such a case, the DUI charge is invalid because the police officer did observe the person driving, and thus the officer lacked probable cause to detain or arrest.
A person can use this defense to challenge a variety of DUI charges. Examples include driving under the influence of alcohol, per Vehicle Code 23152a VC, and driving under the influence of drugs, per Vehicle Code 23152f VC.
Note that it is possible for a person to get convicted of driving under the influence even if his/her car was technically “parked.” All that is necessary is for the driver to voluntarily cause the car to move prior to the arrest, even if this movement is only for a few inches.
The above means a person could get arrested for DUI if:
- he/she was drunk,
- put the car in neutral, and
- rolled a few inches forward before coming to a stop.
Some common penalties for a California DUI include:
- a misdemeanor conviction (as opposed to a felony conviction or an infraction),
- imprisonment in a county jail for up to six months,
- a 6-month driver’s license suspension by the DMV, and
- installation of an ignition interlock device for six months (unless the defendant chooses not to drive).
Our California DUI attorneys will highlight the following in this article:
- 1. Is there probable cause to arrest a person in a parked car for DUI?
- 2. What charges can the defense apply to?
- 3. Can a DUI be sustained even if the car was “parked?”
- 4. What are some common penalties for a California DUI?
1. Is there probable cause to arrest a person in a parked car for DUI?
This is a criminal defense that an accused uses to contest a DUI charge when he/she was arrested for the crime while in a parked vehicle.
The defense is based upon the legal principle that says law enforcement cannot arrest someone unless:
- they have probable cause that someone committed a crime, or
- they have probable cause that someone is about to commit a crime.1
Given this, and if a person was in a parked car and received a DUI, then he/she can assert that no DUI arrest should have been made because there was no probable cause of a crime. The person was merely sitting in a stationary vehicle.
Example: Lisa is sitting in the driver’s seat of her car around 10 pm. She is under the influence of alcohol and is parked in a grocery store parking lot. There are no reports of unruly behavior, dangerous driving, or any accidents.
A police officer leaving the store spots the car and sees Lisa. He taps on the window, she opens the door, and he then arrests her for DUI after smelling alcohol from within the car.
Here, Lisa’s DUI lawyer can successfully challenge the charge since the arresting officer never had probable cause to stop and arrest Lisa in the first place. There were no reports of any suspicious or criminal activity, and Lisa was just sitting in her parked car.
The situation would have been different if the police officer saw Lisa driving erratically and performed a traffic stop. Here, he could arrest her if he conducted a DUI investigation that involved a field sobriety test and perhaps a breathalyzer test that showed a BAC of 0.08% or higher (in violation of Vehicle Code 23152b).
Since, however, the arresting officer had no initial reason to stop Lisa, her arrest was invalid.
If a defendant raises this defense in a DUI case, then a prosecutor can always try to refute it. For example, the prosecutor can say that there was probable cause, despite no driving, because:
- there were reports of the driver acting drunk,
- the driver was inside the car and was acting in a suspicious manner (e.g., shouting, screaming, or banging fists on the dashboard), and/or
- someone reported an accident or traffic violation and gave a description of the motorist’s car.
All of these may successfully rebut a no probable cause defense.
2. What charges can the defense apply to?
An accused, or his/her criminal defense attorney, can raise the no probable cause defense in a variety of DUI cases.
It can be used to challenge such charges as:
- Vehicle Code 23152(a), driving under the influence of alcohol,
- Vehicle Code 23152(b), driving with a BAC of .08% or higher,
- Vehicle Code 23152(f), driving under the influence of drugs,
- Vehicle Code 23153, DUI causing injury,
- Vehicle Code 23136 or 23140, underage DUI,
3. Can a DUI be sustained even if the car was “parked?”
Depending on the facts of a case, a driver may be charged with DUI even if the car was technically parked.
A California court has ruled that there can be a DUI conviction provided that:
- the defendant voluntarily caused a car to move prior to the arrest (which can be proven by circumstantial evidence), and
- he/she did so even though the car was not technically in gear.2
Note that an accused must voluntarily cause a car to move. This means that the following will not lead to a DUI conviction:
- putting a car in drive accidentally, or
- “back seat” driving.
Under California law, a person does not need to move a vehicle very far in order to “drive it.” A distance of a few inches is enough to support a driving claim.3
Further, a vehicle’s engine does not need to be on for someone to be considered “driving it.” For instance, someone might intentionally put a car into neutral in order to roll it down a hill. Or someone might turn an engine off and coast. These acts are both considered “driving” under California’s DUI laws.4
But note that just sitting in the driver’s seat with the engine running does not count as driving. In order to drive, people must actually move their motor vehicles.
4. What are some common penalties for a California DUI?
In California, offenders may face the following DUI penalties:
- misdemeanor charges,
- 3 to 5 years of informal probation (typically 3 years),5
- DUI school ranging from 3 to 9 months (typically 3 months),6
- fines and penalty assessments totaling between $1,500 and $2,000 (depending on the county),7
- a 6-month driver’s license suspension (though people may be able to get a restricted license or drive immediately with an IID restricted license),8
- installation of an ignition interlock device for six months (unless the defendant chooses not to drive),
- up to 6 months in county jail (depending on the county),9
- in some counties, work release, and
- indirect consequences (such as increased car insurance premiums and harsher penalties if the defendant gets convicted of a subsequent DUI).
For additional help…
For additional guidance or to discuss your case with a DUI attorney, we invite you to contact us at Shouse Law Group. Our law firm and defense attorneys provide free consultations and legal advice that you can trust.
- Note that authorities can briefly detain a person without probable cause. This is provided they have a “reasonable suspicion” that the person committed a crime.
- Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753. See also People v. Nelson (2011) 200 Cal.App.4th 1083; and, California Vehicle Code 305 VC.
- Padilla v. Meese (1986) 184 Cal.App.3d 1022.
- People v. Jordan (1977) 75 Cal.App.3d Supp. 1.
- California Vehicle Code 23600b1 VC.
- California Vehicle Code 23538b VC.
- California Vehicle Code 23536a VC.
- California Vehicle Code 13552a1A. See also California Senate Bill 1046 (2018).
- California Vehicle Code 23536a VC.