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7 Situations Where You Can Receive a DUI, When You’re Not Even Driving

Updated on July 9, 2015
Being asleep will not help you.
Being asleep will not help you. | Source

As strange as it seems, you can still be charged with driving under the influence even if you are not driving. These scenarios have already happened to other people, and it can definitely happen to you:

  1. You were too drunk to drive, so you decided to sleep it off in your car. The police has noticed, and decided to check up on you. Even when you have no intention of driving until you are sober, they can still slap you with a DUI. It doesn’t matter even if the car won’t start or was broken.
  2. A while earlier, you were drinking heavily with some friends, but now a friend is driving you home. However, your friend needed to answer the call of nature while on the way, so you stopped for a bit, left you the keys, and he goes off to find some privacy. You decided to wait for him outside, but the police has decided that you were the driver instead.
  3. You were actually committing DUI, but you think no one saw you, but someone reported you without you being aware of it. The police can still charge you with DUI if your BAC levels exceed the legal amount, even if you have arrived at home a few hours ago.
  4. You were drunk, and decided to push the car.
  5. The police stopped you, and you allegedly switched places with a sober passenger. Both of you may get slapped with DUI.
  6. You (a passenger) and an intoxicated driver had been in an accident. They ran, leaving you alone to deal with the police
  7. You were drinking at home, when you decided to listen to some tunes in your car by turning the radio on. As long as you were in the car and the keys are in the ignition, you can still receive a DWI charge even if your car was parked in your driveway.


While some of these situations are actually committing DUI, what about the others where it seemingly does not make sense, especially if it seems like the responsible thing to do? The answer lies in the elements that the prosecution uses in proving DUI:

  1. They have to be under the influence of alcohol or another substance;
  2. Their driving ability has been affected enough to be considered dangerous, or their BAC (from blood, breath, and urine tests) has reached or exceeded 0.08%;
  3. They were driving or have actual physical control of a vehicle motor vehicle

The third element, actual physical control, is interpreted differently by each state. Usually, the defendant has to be driving a vehicle, which is proven if the police or a witness has seen them, but other states include having “in physical control” of a vehicle, but what does that mean?

Per NRS 484C.110, actual physical control means that it does not matter that they were not driving the car as long as they still have the ability to drive, even if they have no intention of doing so. Exact definitions for actual physical control varies, but a notable case (Rogers v. State) has outlined the following factors that constitute if a person has actual physical control of the car:

  • If the vehicle’s engine was running or not. Even if you were just using it for the air conditioner, the court reasons that you can start driving at any time.
  • How warm the engine is, which shows that the vehicle was running earlier.
  • The location of the keys. The worse thing that could happen is the police finding you with the keys in the ignition.
  • The defendant’s position in the vehicle. The size of the vehicle also plays a part in this, which is particularly important for large vehicles or vehicles with sleeping areas like campers.
  • Where the vehicle is parked. The reason behind this is that, if the person was apprehended at the side of the road where they were parked, and the BAC results show that they exceed the limit, then it stands to reason that they have driven there while drinking.
  • Are the vehicle’s headlights on? This is especially important if the defendant was apprehended during the night.
  • Were they trying to move the vehicle, aside from driving it? The reasoning behind this is they are still “controlling” the vehicle if for example, they were pushing it around. This can actually be more dangerous than if they were behind the wheel.
  • Is the property that the vehicle is located on is public or private? There’s less of an offense if they were allegedly driving (or not driving) in their own private property.
  • Does the defendant own the vehicle?
  • Do they have any passengers or other potential driver? Sometimes the police are convinced that the “drunk one” was driving, even if it was their sober friend was actually the driver. Erratic driving or reports might be the reasoning for their suspicion.

Adding to the complication is the fact that each case is different. The best way to avoid this problem in the first place is to get as far away from your vehicle as possible whenever you are intoxicated and get a taxi, a designated driver, or a friend to take you home. Even if it’s inconvenient or costly for you, it’s a small price to pay than fighting the case in court. If it still happened and you were charged with DUI, the only thing you can do now is to contact a DUI defense attorney and fight your case for you. They are all too familiar with cases like this, and they know the best ways to argue the case in your favor.

There are only two right answers here, but no one's judging!

What do you do when you're too intoxicated to drive?

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    • cyoung35 profile image

      Chad Young 3 years ago from Corona, CA

      Very interesting, you think your doing the right thing but actually putting yourself at risk for a DUI.

    • gypsumgirl profile image

      gypsumgirl 3 years ago from Vail Valley, Colorado

      Informative, to say the least. I didn't realize the different circumstances that could get a person in trouble even if they were not driving. Basically, it's just bad to be drunk and in a car.

      Thank you for the insights.

    • goodmanlaw profile image

      Ross Goodman 3 years ago from Las Vegas, Nevada

      Yeah, it's virtually anything that can be effectively called "riding".

    • galleryofgrace profile image

      galleryofgrace 3 years ago from Virginia

      Great article. I'd also like to mention that it doesn't have to be an automobile. It can be a riding mower , moped or some other type of transportation that does not require license plates.