When most people challenge drunk driving charges, they focus on whether the suspect was actually drunk behind the wheel. But in some cases, the more important determination to be made is whether a suspect was driving. If a witness sees a moving vehicle with someone sitting in the driver’s seat and holding onto the steering wheel, that person is obviously driving.
But there are a surprising number of cases in which the evidence is a little more ambiguous because the car isn’t moving (or hasn’t moved much) at the time of the police encounter. If the only person in the car is drunk, does that count as drunk driving?
Laws and definitions vary by state
Driving is sometimes referred to as either causing the vehicle to move or being in “actual physical control” of the vehicle. In certain states, someone only needs to be sitting in the driver’s seat with the engine running to be in actual physical control. In others, the engine doesn’t even need to be running. Just the keys in the ignition are enough.
In California, a slightly higher standard needs to be met to prove driving, but it is still easier than you might assume. Sitting in the driver’s seat isn’t enough, even if the engine is running. Someone (a police officer or witness) needs to see the vehicle move under the control of the suspect.
That being said, moving the car just a few inches or letting it roll while in neutral might both count as “driving.” Say, for instance, that you had too much to drink at a house party and decide to sleep it off in your car, which is parked on the street. Someone parked behind you knocks on your window and asks you to pull ahead a few inches so that they can pull out of their own parking spot. As you do this, a police officer sees you driving. This could be enough to charge you with (and possibly secure a conviction for) drunk driving.
As always, context is important
DUI cases of this nature are somewhat rare, because they rely first on the discretion of the police officer, then the discretion of a prosecutor – either of which may decide that the case simply isn’t worth bringing. But if you are unlucky enough to find yourself facing a unique DUI charge like this, the full context of the situation will be critical to your defense. As such, you should seek the help of an experienced criminal defense attorney.