Can I get a DUI while in a parked car?

We get several calls a week from someone accused of DUI while either waiting or sleeping in a parked automobile.  People will often tell me that ‘they cannot charge me with DUI when I was not driving.”

To begin with, if a person has called me, they have already been charged with a DUI.  The question people mean to ask is whether they can be convicted of a DUI when the police did not see them driving?  The short answer is:  Yes a person can be charged with DUI while in a parked car.  

Circumstantial Evidence of Driving:

In Georgia, to prove DUI a prosecutor must show that a person was driving or in actual physical control of a motor vehicle.  When laypeople read the statute, and they know they were not seen driving by the police, they think the case is over.  It can even cause someone not to seek qualified legal help out of the assumption that it is unnecessary

Circumstantial evidence is when a fact is proved by inference.  Unlike on television or in the movies, you can convict someone based on circumstantial evidence.  However, the weight of the evidence is for the jury to decide.  That means a jury is authorized to believe the inference postulated by the prosecutor or not.

How the State May Prove Driving:

Evidence of driving does not mean only seeing the actual driving.  The police never see actual driving when they come upon an accident scene.  However, there is sufficient evidence of driving by the crashed automobile(s).  As to who was the driver (if no one takes responsibility), the police look into the ownership of the car and the statements of witnesses.  The police make common sense inferences.

When a person is parked in their car, the police can infer who was driving when there is only one person there.  The police can conclude the time of driving by feeling a warm front hood.   The police can even get witness statements from other drivers who may have seen the car being driven.  The police can even directly ask the driver from where they were coming and when.

Those examples are a small number of inferences the police and the prosecutor can make to prove their case.  Of course, these assumptions are certainly rebuttable by the defense, and to warrant a conviction on circumstantial evidence alone, the evidence must preclude any other reasonable explanation.  

Epilogue:

People that decide to sleep off impairment, when they realize they are unsafe to drive, are doing the right thing.  That being said, they are still prosecuted as if they were caught weaving all over the roadway.  I have always thought it was fairer to charge the person doing the right thing with a less severe offense.  It is almost as if we are encouraging someone to drive drunk by not giving some credit to the person who knew they were unsafe to drive and pulled over.  That being said, you can be charged with a DUI in a parked car.