DUI Laws vary from state to state, and the question of whether or not one can be charged with a DUI when she's not driving centers around the particular State's definition of vehicle operation. According to Total DUI, in some cases, intent to operate a vehicle is enough to warrant a DUI charge. Intent is determined differently in various states, and can be indicated by sitting in a driver's seat, putting the keys in the ignition or taking other steps to get behind the wheel.
In California, there are a number of factors to take into consideration. Whether the car is engaged in a gear, if it is running, the location of the keys and the physical presence of a person with a BAC over the legal limit are all potential indications of intent to operate a motor vehicle.
In most traditional cases of confusion, a person can be charged with DUI if he is not driving. Someone who realizes he has had too much to drink and pulls off to the side of the road, for instance, can be approached and arrested even though he isn't driving at the time of the arrest. Many cases that involve a stationary DUI charge involve the principal of actual physical control. Under Arizona state law, for instance, if a person can be proved to have a blood alcohol content over the legal limit within two hours of driving, he can technically be charged with a DUI.
Operation is not restricted to physically operating a vehicle. Total DUI cites several particular cases that resulted in DUI charges despite the fact that the defendant was not driving at the time of arrest. In Massachusetts, a driving instructor was charged with DUI when police discovered his BAC was nearly twice the legal limit, despite the fact that he was not operating the car.
In some states, DUI charges do have some leeway. A person may be charged with DUI even when sitting in a car to stay warm while waiting for a ride, however there is typically enough substantial evidence to have the charge thrown out. Prosecution will always look for indications of intent to operate a vehicle as it pertains to state laws.
The best and safest defense against a DUI is to take the necessary initiatives to avoid any form of motor vehicle operation before one starts drinking. Taking steps like designating a driver or using cabs and public transportation indicate the intent to drink responsibly, and ultimately put people in safer situations. While it may seem unfair, a DUI arrest can occur despite one's best intentions, and in this case would be the product of poor planning.
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Recently on our DUI forum a user asked, “I am twenty years of age. I was arrested for a California DUI. I am wondering what will happen to me now and what steps I need to take. Do I need to talk to a DUI lawyer?”