Can I Get Arrested for DUI when Not Driving?

Can I Get Arrested for DUI when Not Driving?

Many people believe that you can’t be arrested for a DUI in Arizona unless you are driving. Some people might try to sleep it off in their vehicles after drinking and have the engine and air conditioner running because of the heat. Others may decide to sit in their vehicles with the air conditioner running to cool off.

You might wonder, “Can I be charged with drunk driving while sleeping in my car?” In Arizona, the answer is yes.

If you do, the police can charge you with a DUI. Under Arizona’s drunk driving statute, you can be charged with a DUI even if you were not driving if the police believe you were in actual physical control of your vehicle.

Police will frequently charge people with DUIs because they are physically controlling their vehicles. Typically, an officer will find someone who is passed out or sleeping in their vehicle while intoxicated and charge them with drunk driving.

Here is what you need to know about being charged with a DUI while not driving from the Shah Law Firm

Drunk Driving Statute ARS 28-1381

Arizona’s drunk driving law is found under ARS 28-1381. Under this law, the police can charge a DUI with not driving if you physically controlled a vehicle while you were impaired by alcohol or drugs.

This statute allows the police to charge this offense even if you were only impaired to the slightest degree.

Even if you were not driving at the time, you could be criminally charged and convicted if you are determined to have had control of your vehicle. 

Factors Courts Consider for Actual Physical Control

Courts consider multiple factors when determining whether someone charged with DUI not driving had actual physical control of the vehicle, including the following:

Location of the keys
Whether the ignition was in the on position
Whether the engine was running
Location of the person in the vehicle
Whether the person was sleeping or awake
Whether the lights were turned on
Whether the vehicle was in park or just stopped
Where the vehicle was located
Whether the driver had pulled off of the road
Weather conditions and time of day
Whether the air conditioner or heater was running

This is not an inclusive list, and other factors based on the circumstances will also be considered. The court considers these and other factors to determine whether you could immediately drive your vehicle. If so, the court might find that you had actual physical control and convict you of a DUI if you were even slightly impaired by alcohol or drugs. 

The factors are considered based on the circumstances of each case. For example, in State v. Webb, 78 Ariz. 8 (1954), the Arizona Supreme Court found that a driver was in actual physical control of his vehicle when he was found passed out with the engine running and lights on with his vehicle stopped in the middle of a traffic lane. The man was found in the driver’s seat with both of his hands on the steering wheel. The court determined he controlled the vehicle because he could drive off immediately upon waking. 

By contrast, the Arizona Supreme Court found that a driver was not in control of his vehicle under the DUI statute in State v. Zavala, 136 Ariz. 356 (1983). In that case, a man was found parked along the side of a highway with his windows rolled down. The man was hanging partially outside of the window and was unconscious. The engine was turned off, and the ignition was off. The court found that the man had relinquished his vehicle control when he stopped driving and so couldn’t be convicted. 

In most cases, a jury will decide whether a defendant was in control of a vehicle and guilty of a DUI while not driving.

Juries are instructed that to be in actual control of a vehicle, the defendant must have posed a threat to imminently drive the vehicle while impaired. 


Defending Against a DUI After Sleeping in My Car

If you were charged with a DUI while not driving, your defense lawyer would carefully review the facts and circumstances to determine the best defense strategy to implement. If you were using your vehicle to shelter from the heat, your attorney could use that as a potential defense.

In State v. Love, 182 Ariz. 324 (1995), the Arizona Supreme Court held that a person should not be prosecuted for a DUI when they were using their vehicle as a temporary stationary shelter. 

This defense is known as the shelter rule and can be asserted to defend against a DUI while not driving charge, depending on the facts and circumstances of your case. For example, if you left a bar and fell asleep in your vehicle in the parking lot while trying to get sober, your attorney might assert this defense even if you had the air conditioner turned on because of the heat. 

How to Avoid Being Charged with a DUI While Parked

It is best to plan ahead so you don’t have to worry about possible DUI charges. When you plan to go out or meet up with friends, choose a designated driver, use a rideshare app, stay at a nearby hotel, or stay over at a friend’s house if you plan to drink. If you do end up with a DUI after falling asleep in your vehicle, call the Shah Law Firm immediately for help. 

It is best to avoid getting behind the wheel of your vehicle whenever you have been drinking. If you do, you could be convicted if you are impaired to the slightest degree, including even when your blood alcohol concentration is lower than 0.08%. While it’s best to stay out of your vehicle after you have been drinking, it’s better to sleep in it than to try to drive home. 

Get Help from a DUI Defense Attorney

If you were charged with a DUI while not driving in Arizona, you should contact an experienced defense lawyer at the Shah Law Firm.

Call to schedule a free consultation at (602) 560-7408.


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Top Rated Criminal Defense Attorney Phoenix

As a top-rated criminal defense attorney on Avvo and Super Lawyers, Arja Shah is skilled in all areas of criminal law, with specific expertise in domestic violence law and DUI defense.

Arja Shah is a leading Criminal Defense Attorney serving Phoenix, Scottsdale, Mesa, Tempe, and surrounding areas. The Shah Law Firm has successfully defended hundreds of individuals facing serious charges from first offense DUI charges to attempted murder charges – all carrying potential life-altering punishments. Arja truly understands what is at stake when you’re charged with a crime and takes great pride in offering very personalized service to her clients. Arja h4ly believes that it’s not just about knowing the law, but also knowing how to comfort and lead people through difficult times. Contrary to other “law firm mills” out there, where the client can bounce around to other attorneys and paralegals, Arja gives her undivided attention to each and every one of her clients.

While Shah Law PLLC cannot guarantee an outcome, we can guarantee a reasonable fee and expertise from years of service. Below are some of the areas of criminal law that we are experienced in defending:

Domestic Violence
DUI Charges
Vehicular Manslaughter
Disorderly Conduct
Aggravated Assault
Drug Possession
ShopliftingTheft Charges

Regardless of what criminal charges you are facing, it’s important to hire a skilled Phoenix criminal defense attorney with a proven track record to help you to fight your case. To schedule a consultation with Shah Law Firm PLLC, call (602) 888-0369 or visit us at We serve all of Arizona, including clients in Phoenix, Scottsdale, Mesa, Tempe, Goodyear, and Apache Junction.

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