Is there probable cause for a DUI if I was in a parked car?

Probable cause and parked car DUI refers to a legal defense that you can use to contest a DUI charge that you received while in a parked car. The defense asserts that, in such a case, the DUI charge is invalid because the police officer did not observe you driving, and thus the officer lacked probable cause to detain or arrest.

You 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 to get convicted of driving under the influence even if your car was technically “parked.” All that is necessary is for you to voluntarily cause the car to move prior to the arrest, even if this movement is only for a few inches.

The above means you could get arrested for DUI if:

• you were drunk,
• you put the car in neutral, and
• you 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 you choose not to drive).

Our California DUI attorneys will highlight the following in this article:

• 1. Is there probable cause to arrest me in a parked car for DUI?
• 2. What charges can the defense apply to?
• 3. Can a DUI be sustained even if my car was “parked?”
• 4. What are some common penalties for a California DUI?
• Additional Resources

1. Is there probable cause to arrest me in a parked car for DUI?

This is a defense that you can use to contest a DUI charge when you are arrested while in a parked vehicle.

The defense is based upon the legal principle that says law enforcement cannot arrest you unless:

1. they have probable cause that you committed a crime, or
2. they have probable cause that you are about to commit a crime.¹

Given this, and if you were in a parked car and received a DUI, then you can assert that no DUI arrest should have been made because there was no probable cause of a crime. You were 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 you raise 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 you acting drunk,
• you were inside the car and were acting in a suspicious manner (for example, shouting, screaming, or banging fists on the dashboard), and/or
• someone reported an accident or traffic violation and gave a description of your car.

All of these may successfully rebut a no probable cause defense.

2. What charges can the defense apply to?

You 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 my car was “parked?”

Depending on the facts of your case, you may be charged with DUI even if your car was technically parked.

A California court has ruled that there can be a DUI conviction provided that:

• you voluntarily caused a car to move prior to your arrest (which can be proven by circumstantial evidence), and
• you did so even though your car was not technically in gear.²

Note that you 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, you do 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 you to “drive” it.” For instance, you might intentionally put a car into neutral in order to roll it down a hill. Or you might turn an engine off and coast. These acts are both considered “driving” under California’s DUI laws.⁴

Note that just sitting in the driver’s seat with the engine running does not count as driving. In order to drive, you must actually move your motor vehicle.

4. What are some common penalties for a California DUI?

In California, you 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 you 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 you choose 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 you get convicted of a subsequent DUI).

Additional Resources

For more information, refer to the following:

1. Alcoholics Anonymous – 12-step program for overcoming alcoholism.
2. Drunk Driving Overview – NHTSA page on drunk driving statistics and prevention.
3. Impaired Driving: Get the Facts – CDC fact sheet on impaired driving.
4. Driving Under the Influence (DUI) – California DMV page on driver license suspension for DUIs.
5. MADD – Non-profit organization devoted to stopping drunk driving.

---

Legal References: