DUI While Parked

Whopper's Night Out

"I got so high, I had to pull to the side"

Can Whopper Riley Avoid a DUI if he Parks His Car?

Answer: It depends.

Whopper Riley has been drinking at Loopie's Bar and Buffet and had too many apple martinis. Whopper decides to drive the 5 miles to his happy home. After a mile or so Whopper realizes he is blind drunk and a dangerous menace to all. So he pulls his Corvette over to the side of the road and legally parks the car, shutting off the engine. He leaves the keys in the ignition, on the accessory setting, so he can charge his cellphone and listen to music. He puts the seat back so he can pass out in comfort. Soon after losing consciousness Whopper is rudely awakened by a police flashlight, banging on his window. There stands Officer Rory Redhot impatiently asking Whopper about his "welfare".

"Well, I was fine until you woke me up Officer, and I'm not on welfare" replies Whopper foggily. Officer Redhot asks Whopper some rapid fire questions:

  • Were you driving?
  • How much did you drink?
  • When did you start drinking?
  • When did you stop drinking?
  • Have you been drinking since you parked?
  • How long have you been parked here?
Officer Redhot asks these questions to help establish that Whopper has been drinking, that Whopper was drunk when he drove there, and that Whopper did not drink any more booze after he parked.

Officer Redhot wants to arrest Whopper for a couple of reasons. First of all, he likes arresting people and second of all, he is not about to leave Whopper there by the side of the road in a car with the keys in case Whopper changes his mind and decides to drive home. The authority to arrest Whopper is taken by the officer under , an officer may arrest someone who he "reasonably" believes has been driving while intoxicated on drugs or alcohol. This law allows the officer to arrest Whopper even though he did not himself observe Whopper driving his Corvette.

Does Whopper have to answer Officer Redhot's questions? Generally no. Whopper must identify himself and produce his ID, insurance, and car registration if he has them, but generally he is not legally required to answer the officer's questions. Does Officer Redhot need to read Whopper his rights under Miranda before asking Whopper questions? Generally no, because Whopper is not yet under arrest. If Whopper admits to driving the car to where it is parked, that he hasn't had any more alcohol to drink since he parked, and that he has been parked only a short time the Officer Redhot can use those statements to establish that he reasonably believes Whopper has been driving while intoxicated.

Reality Check: Statements to Law Enforcement are Really Admissions!

So Whopper politely declines to answer Officer Redhot's questions. Below are some ways the officer might attempt to show that Whopper had been driving while intoxicated.

Whopper's Warm Engine : Police are fond of saying that an engine is warm to the officer's touch, therefore the car must have been recently driven. Officer Redhot believes he is blessed with extraordinary fingers that can tell how long a car has been parked simply by touching the hood, regardless of the engines actual running temperature and the actual temperature of the engine that he is touching. Without Whoppers admission as to how long he had been parked there Officer Redhot will have to guess how log Whopper's car has been parked.

Whopper is in the Driver's Seat: The fact that Whopper is in the driver seat does not prove that he drove the car to the parking spot, but it does make it more likely. It doesn't help that the keys are in the ignition. But because Whopper didn't admit to driving the car means that the prosecutor will have to prove it beyond a reasonable doubt. By not admitting he drove the car Whopper has forced Officer Redhot prove it by other evidence if he can.

Whopper once had a lawyer that told him not to volunteer information to police trying to convict him of a crime. "Why make it easy for them?" his lawyer asked him.

"Have You Had Anything to Drink Since You Have Been Parked Here" Officer Redhot asks? Whopper respectfully declines to answer. Later, when the officer has Whopper's car towed, he searches the trunk and finds an empty bottle of Tequila. You might think this would help Officer Redhot prove Whopper was drunk driving, but it does the opposite. Now he cannot prove that Whopper was drunk when he parked there. He may have drank the Tequila after he parked.

What is important to note here is, that by not answering the officer's question about whether he drank after he parked the car, Officer Redhot has to prove Whopper drank before Whopper parked. Without an admission from Whopper of where and when he drank and that he had not drunk in the parked car, together with the fact that there was an empty liquor bottle in the trunk, it will be harder for the officer to prove Whopper arrived at the parking place intoxicated. Notice also that Whopper does not lie to the officer. (lying to an officer is a crime)

Moral of the Story: Whopper gets taken to jail but is not convicted of DUI. Why? Because he wasn't seen driving the car by the officer or any other witness. Just because Whopper was drunk when Officer Redhot arrested him in his parked car does not prove Whopper was drunk when he parked the car. Whopper did not help the Officer by "ratting" on himself by admitting that he was driving the car, had been drinking before he drove and admitting that he had not consumed liquor after he was parked.

Whopper should not get a DUI, because instead of keeping on driving when he was drunk, endangering others, he stopped driving and was not endangering anyone. That is what the legislature wants people to do, stop driving drunk. Makes you wonder why police and prosecutors go out of their way to convict people of DUI for pulling over to sleep it off. Because of this policy drunk drivers decide to just keep driving and try and make it home, especially if they are just going to get prosecuted for DUI anyway.

Keep in mind that a refusal to take a chemical test will result in the automatic suspension of your drivers license for at least 1 year.

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