The fashion in which the penal code has been drafted presents a unique situation when we are discussing the predicament of getting a DUI while your simply sitting in, around, or sometimes nowhere near you vehicle. How is this possible, you ask? How can I get a DUI – which is DRIVING while under the influence, if I’m not driving a vehicle at the time the police are around. Although “driving” is an element of 23152(a) and (b), there are exceptions to the observed driving rule.
In one case, a defendant who was found standing alone next to the vehicle after the accident and whose injuries were consistent with having sat in the driver’s seat was properly found to be the driver. e.g. People v Gapelu (1989) 216 CA3d 1006, 1009, 265 CR 94. But e.g. People v Moreno (1987) 188 CA3d 1179, 1186, 1190, 233 CR 863 (corpus delicti was not established when there was no evidence that defendant was driver and there were other people at scene who may have driven); People v Nelson (1983) 140 CA3d Supp 1, 3, 189 CR 845 (corpus delicti was not established because it was possible other individuals may have been driving).
• Parked vehicle.
The corpus delicti for a DUI offense was established when the officers found the vehicle parked with its front tire missing and raised on a handjack, and the defendant had the keys to the vehicle and lug nuts in his pocket. See People v Scott (1999) 76 CA4th 411, 417–418, 90 CR2d 435. See also People v Komatsu (1989) 212 CA3d Supp 1, 5, 261 CR 681 (corpus delicti was established when officers discovered that vehicle was blocking roadway, parking lights of vehicle were on, defendant was only person in vicinity of vehicle and was intoxicated, and defendant was sleeping in front passenger’s seat holding car keys).
sleeping in your car while inebriated (i.e. being “passed out”) can result in an arrest for public intoxication per PC 647(f).
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