DUI Charges for Sleeping in a Parked, Running Car

Attorney Answer

California punishes driving, not sitting — but that is a narrower advantage than it sounds, and on your facts it may not help at all.

Cal. Veh. Code § 23152 makes it unlawful to *drive* a vehicle under the influence of any alcoholic beverage, subdivision (a), or to *drive* with 0.08 percent or more alcohol by weight in the blood, subdivision (b). "Drive" is the contested element in your case.

California is unusual here. Most states prohibit "operating" a vehicle or being in "actual physical control" of one; California's statute says drive. In *Mercer v. Department of Motor Vehicles*, 53 Cal. 3d 753 (1991), the California Supreme Court held that "section 23152 requires proof of volitional movement of a vehicle." The facts were close to yours: a man found asleep, slumped over the wheel of a lawfully parked car, lights on and engine running. The court held the warrantless misdemeanor arrest unlawful because the officer never saw the vehicle move, so the offense did not occur in the officer's presence under Penal Code § 836, and the licence revocation could not stand.

Now the part that matters most for you, because *Mercer* wrote its own limits into the opinion. The court did not hold that observed movement is required to support a criminal conviction under § 23152, and it said its holding does not disturb convictions resting on circumstantial evidence of vehicle movement. Someone asleep in a parked, running car can still be convicted if circumstantial evidence shows he drove it there. *Mercer* also flagged the statutory exceptions to the in-presence requirement in Cal. Veh. Code § 40300.5, which permit a warrantless DUI arrest where the person was involved in a traffic accident or is observed in or about a vehicle obstructing a roadway.

That last point is why your facts are not *Mercer's* facts. Mercer's car was lawfully parked. Yours was blocking a driveway and away from the curb. Whether that falls within the obstruction exception is a fact question your lawyer has to work through, and you should not assume *Mercer* wins your case.

What you can do

1. Request the DMV hearing immediately — the window is short and separate from your court date. 2. Write down, for your lawyer only, exactly what you said to the officer. An admission that you drove there is usually the strongest evidence of movement in a case like this. 3. Say nothing further about how the car got there to police, prosecutors, or on social media. 4. Preserve everything that bears on movement: receipts, rideshare records, phone location history, texts, and any neighbor or business camera footage before it overwrites. 5. Get the police report and read what the officer recorded about the car's exact position, the engine, the keys, the gear, and your statements. 6. Take both § 40300.5 and the vehicle's parking position to your lawyer as the central issues, not the fact that you were asleep.

⏱ Time limits apply. If a chemical test was taken, the deadline to request the DMV administrative hearing runs from the date of arrest — often about ten days — and it is printed on the notice you were given. That licence case is a separate track from the criminal case, with a different standard of proof, and the two can reach opposite results on the same stop; *Mercer* itself was a licence case, not a criminal appeal. The exact date depends on when you were arrested.